Summary
In Grier v. Donner, 108 Ga. App. 126 (132 S.E.2d 81), it was said: "1. Under Code § 110-702 a motion in arrest of or to set aside a judgment will lie only for a defect which is not amendable and which appears on the face of the pleadings.
Summary of this case from Adams v. MorganOpinion
40192.
DECIDED JUNE 28, 1963.
Motion in arrest of judgment, etc. Fulton Civil Court. Before Judge Parker.
Jack Broyles, Murray C. Underwood, for plaintiff in error.
Fine Rolader, D. W. Rolader, A. J. Block, contra.
A motion in arrest of judgment under Code § 110-702 lies only for a defect not amendable appearing on the face of the record, the record not including the brief of evidence in the case. Where the record shows that the plaintiff sued for a stated amount, part of which was loss of rent occasioned by the defendant's abandonment of a lease contract, and part of which constituted special damages, and the defendant pleaded that a part of the rent sued for by the plaintiff had already been recovered under a prior distress warrant, a verdict for more than the special damages and less than the rent sought to be recovered is not necessarily illegal on the ground that it cannot be supported under any legal theory, since evidence might have warranted a recovery by the plaintiff for the items sued for less rent recovered in a prior proceeding, or might have shown, under the general denial, that the plaintiff for some other reason was not entitled to all of the rent installments sought.
DECIDED JUNE 28, 1963.
Mark Donner filed a petition against Lona Grier in the Civil Court of Fulton County seeking to recover damages for breach of lease contract. It is alleged that the defendant leased the plaintiff's premises for a period from May 1, 1961, through December 31, 1965, at a monthly rental of $300; that the defendant abandoned the premises in August, 1961, failing to pay the August rent or any rent thereafter, and that the plaintiff in order to minimize the damages rerented the property beginning in October 1961, at a price of $200 per month; also that plaintiff had to pay a water bill of $70.99 incurred by the defendant, to make repairs in the sum of $150 and to pay $300 as the cost of procuring a new tenant because of the defendant's breach. These items add up to $6,420.99, but the plaintiff in fact prayed for judgment in the sum of $6,370.99. The jury returned a verdict of $1,600.99. The defendant filed three defenses, one denying all allegations of the plaintiff's petition except jurisdiction, the second contending that the action should be abated in the amount of $3,600 future rent not due at the time of filing suit, and the third that the issue constituted either estoppel by judgment or res judicata because the plaintiff had previously sued out a distress warrant on the same cause of action, had locked the defendant out of the premises, and had "obtained a judgment against the defendant for some of the money now sued for in the case at bar." The record reveals no prior disposition of the two pleas and contains no brief of evidence. Following verdict the defendant at the same term of court moved in arrest of judgment, contending that the verdict, being for more than the water bills and repairs sued for and less than the rent claimed, is illegal in that there is no way in which it can be reconciled with the pleadings. The overruling of this motion is assigned as error.
1. Under Code § 110-702 a motion in arrest of or to set aside a judgment will lie only for a defect which is not amendable and which appears on the face of the pleadings. Any such motion going to matters not appearing on the face of the record is governed by the same rules of practice as motions for a new trial, and must contain a brief of evidence in every case where a motion for a new trial would need such brief of evidence; that is, all cases unless they happen to fall within the purview of Code Ann. § 70-301.1 Perry v. Maryland Cas. Co., 102 Ga. App. 475 (1) ( 116 S.E.2d 620). The question posed here, which is whether this verdict is sustainable under any view of the pleadings and evidence, necessarily depends upon evidence. So far as the pleadings are concerned, it is obvious that if the evidence showed, in favor of the plea of estoppel by judgment, that the plaintiff had recovered part of the rent for which he now sues under a prior proceeding distraining for rent, or if it had been shown in that case that he was not entitled to a part of the rent for some other reason, then the amount which he could legally recover in this case would be controlled thereby. Without a brief of the evidence it cannot be said from the pleadings alone that the verdict is necessarily illegal because it is a compromise verdict not sustainable under any view of the pleadings and evidence. The defect in the proceedings, if it exists, cannot be reached without a brief of the evidence. As to a motion in arrest of judgment "face of the record" does not include the transcript of evidence, DeCoff v. Newnan, 79 Ga. App. 162 (2), ( 53 S.E.2d 134), and there is no brief of evidence here.
The trial court properly overruled the motion in arrest of judgment.
Judgment affirmed. Felton, C. J., and Eberhardt, J., concur.