The issue formed by the traverse to the answer of the trial judge to the petition for certiorari was material and should have been submitted to a jury; and therefore the judge of the superior court erred in sustaining the oral motion to dismiss the traverse and in dismissing the same.
(a) The error of the judge in sustaining the oral motion of the defendant in certiorari and in dismissing the traverse of the plaintiff in certiorari rendered further proceedings in the case nugatory.
DECIDED JUNE 26, 1946. This was a dispossessory-warrant proceeding instituted in the Civil Court of DeKalb County by Mr. and Mrs. Cecil R. Johnson against R. T. Ginn, upon the grounds that the defendant was in possession as their tenant of certain premises and failed to pay the rent then due, or was holding over and beyond the term for which the premises were rented to him and had refused their demand to surrender possession of the same. The defendant filed a counter-affidavit, denying that he owed the rent alleged to be due or that he occupied the premises as the tenant of either Mr. or Mrs. Cecil R. Johnson, and averred that he was in possession of the premises through an arrangement made with a Mr. Hardman.
On the trial of the issues made by the dispossessory warrant and the counter-affidavit, the judge rendered a judgment in favor of the plaintiffs against the defendant for the premises and for double rent from the date the dispossessory warrant issued, and directed that execution issue against the defendant as principal and against the surety on the bond filed along with his counter-affidavit. The defendant's oral motion for a new trial was overruled, and he filed a petition for certiorari in the Superior Court of DeKalb County. *Page 36 The writ of certiorari was issued and served upon the trial judge, who, in his answer, adopted and certified as true the allegations of the petition for certiorari with the exceptions, (1) that the plaintiffs' motion to strike the counter-affidavit of the defendant had been overruled at said trial, and (2) that the brief of the evidence attached to the petition for certiorari was not correct, and he set out what he designated as a correct brief of the evidence.
The evidence of the defendant in the trial judge's answer was substantially the same as that contained in the petition for certiorari and was to the effect that he rented the premises from W. B. Hardman, with no arrangements as to the duration of the tenancy; that he did not owe the plaintiffs any rent, because he did not know they were his landlords; and that no demand was made upon him for possession of the premises by Mr. Hardman or by either of the plaintiffs. The evidence of the plaintiff, Cecil R. Johnson, as set out in the trial judge's answer was materially different from his evidence as contained in the petition for certiorari. In the evidence of the plaintiff, as set out in the petition for certiorari, he is quoted as testifying, in part, "I did not make any demand personally upon Mr. Ginn to vacate the premises before I took out these dispossessory proceedings, but was relying upon the notice sent to Mr. Ginn by the Office of Price Administration;" while in his evidence, as set out in the answer of the trial judge, he is quoted as testifying, in part: "That immediately after buying the house he went to said property and talked to Mrs. Ginn, telling her that he had purchased the property and wanted the house immediately. Later, on December 3, 1945, he went to the office of lawyer Whitaker, attorney for Mr. Ginn, found Mr. Ginn there talking to Mr. Whitaker; that he then and there told Mr. Ginn again in the presence of his lawyer that he wanted the house immediately . . that he made a request or demand several different times before filing the warrant." A copy of the deed dated September 14, 1945, from Mrs. Leila M. Hardman to Mr. and Mrs. Cecil R. Johnson, conveying the premises in dispute, and a copy of the certificate of the Office of Price Administration, dated October 11, 1945, authorizing either Mrs. Leila M. Hardman or Mrs. Cecil R. Johnson to pursue her remedies for the removal of the tenants, Mr. and Mrs. R. T. Ginn, from the premises by an action to remove or evict them, commenced not sooner than the expiration of three months *Page 37 after September 17, 1945, and a copy of a letter from Mrs. Leila M. Hardman, dated December 6, 1945, returning to the defendant the check for the December rent, were attached to the answer of the trial judge as a part of the brief of the evidence on the trial.
The defendant, R. T. Ginn, traversed the answer of the trial judge on the grounds that the statement therein contained, that the plaintiff, C. R. Johnson, testified, "He further said that he made a request or demand several different times before filing the warrant," was inaccurate and untrue; and that the "plaintiff Johnson, on the contrary, having testified that the only time he saw the tenant was in the office of attorney Whitaker immediately after purchasing the property and several months before the warrant was filed and before the serving of the 60-day notice, in terms of the statute, and the said plaintiff having further, on the contrary, testified that he was relying upon that demand and the written notice and the O. P. A. notice which was mailed to the tenant, and that he did not make any demand for the premises after that time, or immediately preceding the issuance of the warrant, for immediate possession."
On the call of the case for trial in the superior court, the plaintiffs made an oral motion to dismiss the traverse to the answer of the trial judge, which was sustained and the traverse dismissed. To this order and judgment the defendant excepted upon the grounds that it was contrary to law and was an antecedent ruling which controlled the later judgment of the court dismissing the certiorari.
On the trial of the certiorari, the judge overruled and dismissed the certiorari. The exception here is to the judgment striking the defendant's traverse to the answer of the trial judge, and to the judgment overruling and dismissing the petition for certiorari. The plaintiff or defendant in certiorari may traverse the answer or return of the trial judge, and the issue formed upon such traverse shall be tried by a jury at the first term, unless good cause be shown for a continuance. Code, § 19-403. The traverse, if material to the issues involved, must be disposed of before the hearing on the merits of the case. Estes v. Palmour,9 Ga. App. 343 (71 S.E. 590). *Page 38 The issue formed by the traverse to the answer of the trial judge was material in this case and should have been submitted to a jury, instead of being dismissed by the judge on oral motion of the defendant. While the defendant did not deny in his counter-affidavit that a demand for possession had been made upon him by the plaintiff prior to the issuance of the dispossessory warrant, and his failure to do so raised a presumption of law that such a demand had been made (Hindman v. Raper, 143 Ga. 643,85 S.E. 843; Crider v. Hedden, 26 Ga. App. 737,107 S.E. 345; Hennon v. Mitchell, 27 Ga. App. 293,108 S.E. 131), still such presumption must give way to the direct and positive testimony of the defendant on the trial that no demand had been made upon him for possession by anyone prior to the issuance of the dispossessory warrant. "Bare presumptions of law give way to testimony, which may shift the burden of proof or of proceeding to the opposite party, and he is then not entitled to prevail upon the presumption alone." Hamby v. Crisp, 48 Ga. App. 418,421 (172 S.E. 842); Code, § 38-118.
A demand upon the tenant to deliver possession of the premises to his landlord is a condition precedent to the right of the landlord to dispossess the tenant summarily under the provisions of the Code, § 61-301. Bussell v. Swift, 50 Ga. App. 148 (177 S.E. 277), and citations. And the giving by the landlord to the tenant of two months' notice, as required by § 61-105 to terminate a tenancy at will, is not such a demand for possession of the premises as will warrant the issuance by the landlord of a summary proceeding to dispossess the tenant. Beveridge v.Simmerville, 26 Ga. App. 373 (4) (106 S.E. 212).
In the present case, the defendant contended that no demand had ever been made upon him for possession of the premises, and testified unequivocally to this effect. The only evidence of any demand having been made by the landlord upon the tenant for such possession is contained in the brief of the evidence attached to the answer of the trial judge, and the traverse of the defendant denied the truth of this part of the answer. The issues raised by the answer of the trial judge and the traverse thereto of the defendant were material and were questions of fact for the jury under the facts of this case, and the trial judge erred in sustaining the oral motion and in dismissing the traverse. *Page 39
The error of the court in sustaining the oral motion and dismissing the traverse to the answer of the trial judge rendered further proceedings in the case nugatory.
Judgment reversed. Felton and Parker, JJ., concur.