Opinion
33209.
DECIDED JANUARY 9, 1951. REHEARING DENIED FEBRUARY 9, 1951.
Overcharge of rent; from Fulton Civil Court — Judge McClelland. June 6, 1950. (Application to Supreme Court for certiorari.)
Ralph R. Quillian, for plaintiff in error.
Yantis Mitchell, J. Frank Kemp, Joseph D. Tindall, Joseph D. Tindall Jr., contra.
1. An amendment to an answer filed after the time to file an answer has expired, which does not have attached thereto an affidavit to the effect that it is not filed for the purpose of delay is subject to demurrer.
2. The plaintiff proved her case as laid in the petition and it was therefore not error for the court to overrule the motion for a new trial, as the question of the sufficiency of a petition to state a cause of action may not be raised by a motion for a new trial.
DECIDED JANUARY 9, 1951. REHEARING DENIED FEBRUARY 9, 1951.
Mrs. Jessie McMillen sued Mrs. J. Paul Walker to recover triple damages and attorneys' fees by reason of the failure of the defendant to file a proper registration statement on the premises rented by the defendant within the time required and the failure to refund to the plaintiff the difference between the amount fixed as maximum rent subject to refund and the amount ultimately fixed as maximum rent. The petition alleged that the order reducing the rent and ordering the refund was issued July 7, 1949, and that the refund was ordered to be made within thirty days from its date unless the order to refund was stayed in accordance with regulations, and it was alleged that the order was not stayed. The defendant denied the allegations giving rise to controversies between the parties and further alleged: "3. . . defendant . . denies that the defendant is required to make any refund by virtue of said alleged order and avers that the Area Rent Director was without authority to issue said alleged order and especially to undertake to make the same retroactive in effect. Defendant further shows that she has perfected and there is pending an appeal within the agency of the United States Government known as the Office of the Housing Expediter and that under the law defendant has a right to appeal the action of the local Area Rent Director from the decision of the Housing Expediter to the Emergency Court of Appeals and thence to the Supreme Court of the United States before such order becomes final. 4. In answer to paragraph 8 of plaintiff's petition defendant admits that more than 30 days have elapsed since the date of issuance of the alleged order to which reference is made therein and further admits that defendant has not made any refund to petitioner, but defendant denies that she is required so to do. 5. In answer to paragraph 9 of plaintiff's petition defendant admits that she has not undertaken to obtain a `stay of refund' but denies that the same is necessary in staying any suit against defendant predicated upon the alleged order which purports to afford a basis for the present proceeding. 6. In answer to paragraph 12 of plaintiff's petition defendant denies the same as pleaded and further denies that any right of action against defendant has accrued to petitioner or the United States of America. 7. Further answering, defendant denies that she has at any time received as rental for the housing accommodations described, any amount in excess of the lawful maximum rental thereof but avers that if she has received any amount in excess of such lawful maximum that such action on her part was not willful nor was it the result of any failure on the part of defendant to take practicable precautions to prevent the occurrence of the same." After the time for filing an answer had expired the defendant filed an amendment to her answer. The plaintiff demurred to the amendment and the answer as amended. The court sustained the demurrers to the defendant's amendment and to the first sentence of paragraph 3 of the original answer, to which the defendant excepted pendente lite. The judge, trying the case without a jury, found for the plaintiff triple damages and $400 attorneys' fees. The defendant made a motion for a new trial which as amended was overruled and the defendant excepted to the ruling on the demurrers and to the overruling of the motion for a new trial.
1. The amendment filed by the defendant alleged that since July 7, 1949, and during the pendency of this case, she had pursued and exhausted all of the administrative remedies available to her in an effort to set aside the order dated July 7, 1949, upon which the plaintiff's action is based, terminating in an order by the Housing Expediter which on Feb. 14, 1950, denied the defendant's appeal from the order of July 7, 1949. The gist of the other allegations of the amendment is that the orders appealed from were issued without a hearing and were not supported by evidence in that rentals generally prevailing in the Atlanta rental area for comparable housing accommodations were $200 instead of the amount fixed in the order complained of by the defendant, and raised the following questions, among others, that the defendant was never afforded a hearing; that the proceedings were unconstitutional for lack of due process of law. The first of the plaintiff's demurrers was on the ground that the amendment to the answer of defendant filed on March 16, 1950, should be stricken for the reason that there was no affidavit attached to show that the amendment was not filed for the purpose of delay only. Since the defendant made no effort to amend the amendment by attaching such an affidavit, the court sustained this demurrer. We think that the court was correct in this ruling. The defendant contends that the affidavit is not necessary for the reason that the defenses set forth in the amendment are based on facts the principle of which took place after the time for filing an answer had expired and that the amendment showed on its face that they could not have been omitted from the original answer for the purpose of delay only. Assuming that in a proper case, where the facts contained in the amendment showed that the new facts could not have been omitted for the purpose of delay, such facts would excuse the making of an affidavit to the effect that the new facts were not omitted for the purpose of delay, the demurrer in this case is not on such a ground, but is on the ground that the amendment was not filed for the purpose of delay. Code § 81-1310 contains two requirements and both generally have to be complied with. Beacham v. Wrightsville Tennille R. Co., 125 Ga. 362 ( 54 S.E. 157); Gross v. Whitely, 128 Ga. 79 ( 57 S.E. 94); Columbus Show Case Co. v. Brinson, 128 Ga. 487 ( 57 S.E. 871); Archer Cosper v. Arnold-Henegar-Doyle Co., 18 Ga. App. 588 ( 89 S.E. 1089); Richardson v. DuPree, 32 Ga. App. 3 ( 122 S.E. 707). This is not a case where the answer clearly put the plaintiff on notice as to the defenses claimed and where the amendment was but an amplification of the original answer, such as was the case in Conant v. Jones, 120 Ga. 568 ( 48 S.E. 234), and Burnett v. Davis Co., 124 Ga. 541 ( 52 S.E. 927). The judge did not abuse his discretion in sustaining this demurrer to the amendment which was allowed subject to demurrer.
2. Since the court properly struck the amendment on demurrer, only one question was left for trial under the original answer and that was whether the defendant proved that the violation of the order was not wilful or the result of a failure to take practicable precautions to prevent its occurrence. The only explanation the defendant gave for not making the refund ordered was that she refused to do so on advice of counsel. The court was authorized to find that such evidence was insufficient for the purpose. Assuming, but not deciding, that the violation was not wilful, in the case of an order requiring a refund there are only two practicable precautions that a landlord can take to avoid violating the order; one is to pay the refund within the time provided by the order; the other, in the event the landlord desires to appeal the order requiring a refund, is to obtain a stay of the order by depositing the amount of refund with the Treasurer of The United States in accordance with Revised Rent Procedural Regulation No. 1. Since the landlord failed to take the practical precaution necessary to prevent the violation of the refund order, the court did not err in finding triple damages and attorneys' fees.
The plaintiff in error contends that two cases from this court control the issues here, Mitcham v. Patterson, 82 Ga. App. 468 ( 61 S.E.2d 517), and Ivy v. Ferguson, 82 Ga. App. 600 ( 62 S.E.2d 191). There was no demurrer in this case and even if the court had not stricken the amendment, the plaintiff in error cannot now by a motion for a new trial take advantage of the defects in the petition. Nixon v. Nixon, 194 Ga. 301 (1) ( 21 S.E.2d 702); Twilley v. Twilley, 195 Ga. 291 ( 24 S.E.2d, 41); Grice v. Grice, 197 Ga. 686 (1) ( 30 S.E.2d, 183).
The court did not err in sustaining the demurrers to the amendment or in overruling the motion for a new trial.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.