Shehane v. Eberhart

125 S.E. 506, 33 Ga. App. 23, 1924 Ga. App. LEXIS 681

• Court: Court of Appeals of Georgia
• Decided: November 12, 1924
• Docket: 14352
• Status: Published

Opinion

Broyles, C. J.

1. “Where the only ground of a proceeding by a landlord to dispossess a tenant is that the tenant is holding over beyond his term, the tenant can not set up, by way of recoupment or counter-claim, damages which he alleges he has sustained by reason of the failure of tlie landlord to repair the premises. If the tenant is in fact holding over and beyond his term, the state of accounts between the landlord and the tenant, growing out of the tenancy at the time the warrant is issued, is entirely foreign to the issue raised by the dispossessory proceeding, which alleges that the landlord is entitled to retake possession of the property because the tenant’s right to possession has terminated by the expiration of the time to which the contract (and the possession of the tenants) was limited.”

Decided November 12, 1924. Erwin, Erwin & Nix, for plaintiff. Wolver M. Smith, John J. Striclcland, for defendants.

2. “Since the lower court erred in overruling the demurrer interposed by the plaintiff to the defendants’ plea, all further proceedings during the trial were nugatory, and it is unnecessary to consider any further assignments of error presented by the bill of exceptions.”

3. The preceding rulings are those of the Supreme Court, handed down in this case when it reversed this court’s judgment of affirmance. See Shehane v. Eberhart, 158 Ga. 743 (124 S. E. 527). Therefore the judgment of affirmance (30 Ga. App. 265) is vacated, and this court now holds that the trial judge erred in overruling the demurrer to the defendants’ plea.

Judgment reversed.

Luke mid Bloodworih, JJ., concur.