1. Under a lease of real estate for a term of less than 5 years, and granting only the usufruct, the tenant cannot sublet the premises or transfer the lease without the consent of the landlord; but if he should, without such consent, undertake to assign or transfer such lease to another person, the landlord may, by affirmative action, elect to treat such unauthorized transferee as his own tenant, and thereby establish between them the relation of landlord and tenant according to the terms of the original lease. Code, § 61-101; Hudson v. Stewart, 110 Ga. 37 (35 S.E. 178); Armstrong v. Reynolds, 33 Ga. App. 27 (1) (125 S.E. 512); Garbutt Donovan v. Barksdale-Pruitt Junk Co., 37 Ga. App. 210 (1) (139 S.E. 357).
2. Where, as in the present case, the original petition alleged that the landlord acquiesced in the transferees' possession of the property, and accepted rents from them in accordance with the original lease, and thereafter, in an amendment (the first amendment), it was alleged further that the landlord "recognized these plaintiffs [the transferees] as his tenants under said lease contract . . and repeatedly stated to the plaintiffs that they could occupy said premises under the provisions of said lease contract as long as they desired" — Held, that the petition as thus amended was sufficient to show affirmative action on the part of the landlord to treat the transferees as his own tenants under the terms of such lease contract. Mendel v. Barrett Son, 32 Ga. App. 581 (124 S.E. 107); Garbutt Donovan v. Barksdale Pruitt Junk Co., 37 Ga. App. 210 (supra); Kaufman Bros. Co. v. Pappas, 45 Ga. App. 479 (165 S.E. 326). *Page 502
3. This being a suit in which the plaintiffs, suing as transferees, claimed the right to renew the lease for an additional term, according to its provisions as applied to the original tenant, and sought injunction to restrain the landlord from removing certain appurtenances or fixtures which were being used in connection with the building at the time it was originally leased, the allegations of the original petition, together with those added by the first amendment, were sufficient to state a cause of action; and this is true, regardless of whether before such amendment the petition was defective and subject to general demurrer on the ground that, under the terms of the original lease, the tenant did not have the right to transfer it.
(a) The judge, on December 14, 1946, having sustained a general demurrer and dismissed the original petition, had the power during the same term of the court to vacate this judgment even upon his own motion, for the purpose of promoting justice; and it does not appear that he abused such discretion in so vacating the judgment for the purpose of considering the amendment referred to in his order, namely the first amendment, as above described. Athens Apartment Corp. v. Hill, 156 Ga. 437 (1) (119 S.E. 631); Kerr v. Kerr, 183 Ga. 573 (1) (189 S.E. 20); Jones v. Garage Equipment Co., 16 Ga. App. 596 (85 S.E. 940); Southern Cotton Oil Co. v. Taylor, 18 Ga. App. 56 (88 S.E. 798); Smith v. Armour Fertilizer Co., 18 Ga. App. 521 (89 S.E. 1087).
(b) The power of the court in its discretion to vacate a judgment rendered during the same term may be applied to judgments dismissing petitions out of court as well as to other judgments. Phillips v. Aycock, 89 Ga. 725 (15 S.E. 624); Van Dyke v. Van Dyke, 120 Ga. 984 (1) (48 S.E. 380); Deen v. Baxley State Bank, 192 Ga. 300 (1) (15 S.E.2d 194).
(c) If in this case notice to the parties was necessary before vacating the judgment, the presumption is that such notice was given, nothing to the contrary appearing. Southeastern Pipe-Line Co. v. Garrett, 192 Ga. 817 (1), 825 (16 S.E.2d 753); Carmichael v. Jackson, 194 Ga. 664, 670 (22 S.E. 470). See also authorities cited under (a), supra.
(d) The present case differs on its facts from Cofer v. Maxwell, 201 Ga. 846 (41 S.E.2d 420), where the original order clearly provided that the petition would be considered dismissed unless amended within five days to meet enumerated grounds of demurrer, and it was held that the plaintiff did not show any sufficient excuse for failure to obtain an order allowing her amendment within the time specified, and hence did not show any meritorious ground for setting aside the original judgment, so as to let in the amendment. It is also distinguished by its facts from Wells v. Butler's Builders' Supply Co., 128 Ga. 37 (3) (57 S.E. 55), Field v. Brantley, 144 Ga. 55 (3) (86 S.E. 245), and Cahoon v. Wills, 179 Ga. 195 (1) (175 S.E. 563), in which the plaintiffs claimed the right to amend even though the petitions had been dismissed and had not been reinstated.
(e) There is an important difference between cases depending upon absolute right, and those in which the judge may either vacate a judgment or let it stand, within the realm of his discretionary power. In the latter class of cases, any judgment rendered will be affirmed unless such discretion is manifestly abused. See Van Dyke v. Van Dyke, 120 Ga. 984, *Page 503 987 (48 S.E. 380); Wells v. Butler's Builders' Supply Co., 128 Ga. 37, 40 (supra); Sherman v. Stephens, 30 Ga. App. 509 (1), 517 (118 S.E. 567).
4. Both the first and the second amendments were properly allowed as against all grounds of demurrer urged; nor was it error to overrule the demurrers to the petition as amended.
(a) While the brief for the plaintiff in error contains some argument based upon the statute of frauds, there was no reference whatever to this statute in any of the demurrers, and therefore no question as to its applicability is presented by the present record. Pope v. Lovett, 188 Ga. 524, 526 (4 S.E.2d 152).
Judgment affirmed. All the Justices concur, except Duckworth, P. J., and Atkinson, J., who dissent.
No. 15789. JUNE 12, 1947. ADHERED TO ON REHEARING JULY 11, 1947. The instant suit in equity was brought by Ellis W. Haygood and Weldon Haygood against R. G. Lawson. The plaintiffs sued as transferees of a lease that had been made between Lawson as landlord and another person as tenant. The petition was at first dismissed on general demurrer. Later this order was vacated. Thereafter the plaintiffs filed two amendments, which the court allowed. The defendant renewed his original demurrer, and added further grounds of demurrer. The court overruled all grounds of demurrer, and the defendant excepted. In his bill of exceptions he assigned error upon the second order, vacating the first or original order dismissing the petition, and upon all subsequent orders. The following facts appeared:
On November 14, 1945, R. G. Lawson entered into a written contract with M. Boyd, leasing to him "the dining room and kitchen" of a described building for one year beginning November 15, 1945, for a monthly rental of $25 per month, "with the right of the lessee to renew said lease for an additional period of 2 years under the same terms." The lease contained various other provisions, and ended with the following clause: "This contract and lease is binding both the administrator and assigns of each party." There were no other words touching assignment. The property thus leased was used by M. Boyd for the purpose of operating a restaurant. On May 1, 1946, Boyd transferred the lease in writing to Ellis W. Haygood and Weldon Haygood "without recourse." On October 21, 1946, the transferees sought, by written notice to *Page 504 Lawson, the owner and lessor, to exercise the right of renewal as granted in the lease to the original lessee. Lawson refused to recognize them as having any such right of renewal, and on November 16, 1946, they, Ellis W. Haygood and Weldon Haygood, filed against Lawson the present suit praying for injunction and general relief. The petition alleged the facts hereinbefore stated, and also the following:
At the time of execution of the original lease agreement between the defendant (Lawson) and M. Boyd above set out, there had been installed in said building a water-pipe and butane-gas-pipe line leading into the leased premises, and there was also installed in the basement of said building a motor which furnished power for the cooling system in the portion of the building leased under said agreement. Immediately after receipt by the defendant of the petitioners' notice of intention to exercise their right to renew said lease, the defendant personally advised the petitioners that he did not concede that they had a right to renew the lease beyond November 14, 1946, and that if they undertook to retain possession of said leased premises beyond one year from the date of said lease, the defendant would immediately disconnect said water and gas pipes, and remove said motor; and the petitioner charged upon information and belief that it is the defendant's intention so to do "tomorrow." The petitioners contend that they have a right, as assignees of M. Boyd, to the occupancy of said leased premises in the same condition that existed at the time of the execution of the lease agreement by the defendant and M. Boyd. The petitioners show that they are now in possession of said leased premises, operating a restaurant and serving the general public, and if the defendant is permitted to disconnect the water and butane-gas lines, and remove said motor serving the refrigerating system in said restaurant, their business will be immediately interrupted and they will be forced to discontinue the same, and their lease will be thus rendered worthless to them. By the very nature of the business which the petitioners are conducting in the said building, it would be impossible to compute in money the damages that they would sustain, and each day and hour in which they would be deprived of the operation of said business would constitute a cause of action, involving a multiplicity of suits in order to obtain adequate redress. The petitioners charge that the acts which the defendant has *Page 505 threatened to commit as herein set forth will be committed, unless enjoined and restrained, for no purpose except to cripple and destroy the business of petitioners. The petitioners have no adequate remedy at law.
As indicated above, the plaintiffs prayed for injunction and general relief.
The defendant filed a demurrer based on three grounds, all general in nature, the third ground urging, however, that the copy of the lease attached to the petition "shows that the original lessee had no right to transfer said lease." On December 14, 1946, the judge entered an order as follows: "This demurrer coming on for hearing, and after argument, the same is hereby sustained, the proceeding will be stayed until the plaintiff shall have the opportunity to except as provided by law."
On December 28, the following order was passed: "The [plaintiffs] offering an amendment to the original petition, ordered that the order of December 14, 1946, be and the same is hereby vacated, and the amendment this day offered is allowed, subject to further demurrer by the defendant. This December 28, 1946."
On the same date, December 28, 1946, the court allowed the following amendment, subject to demurrer:
(First Amendment.) "12. Plaintiffs show after the transfer of the lease contract to them, referred to in said petition, by M. Boyd on the 1st day of May, 1946, the defendant, R. G. Lawson, recognized these plaintiffs as his tenants under said lease contract. He accepted rents from them as provided in said contract, permitted their occupancy of the premises under the terms of said lease contract and preserved the status quo of the leased premises under the provisions of said lease contract and repeatedly stated to the plaintiffs that they could occupy said premises under the provisions of the said lease as long as they desired.
"13. Plaintiffs show that they paid the rents stipulated in said lease contract to the defendant monthly in advance from the date of the transfer thereof to them up to and until the 15th day of November, 1946, and on said date, payment for the next month rent was tendered to the defendant, to which he refused to accept and plaintiffs are prepared to make payment of said rent henceforth under the terms of said rent contract." *Page 506
The defendant excepted pendente lite to the allowance of this amendment, and in the final bill of exceptions assigned error upon such exceptions.
On January 18, 1947, the court allowed the following amendment to the petition: (Second Amendment.) "14. Your petitioners show that the original lessee, M. Boyd, during the time of the occupancy of said premises had installed certain fixtures and stock of merchandise capable of being used in the operation of a restaurant. In fact everything inside said restaurant was the property of the said M. Boyd. Three days before the transfer of the said lease by the said M. Boyd to your petitioners on May 1st, 1946, your petitioners entered into an agreement with the said M. Boyd for the purchase of the equipment and supplies at and for the price of $4650, and paid to the said M. Boyd a portion thereof and gave him their promissory note for the balance to be paid on the assignment of said lease contract to them, whereupon your petitioners went to the defendant on the day previous to May 1st, 1946, and advised the defendant of their agreement with the said M. Boyd and inquired of the defendant whether or not he would consent to such transfer.
"15. Your petitioners show that on said day previous to the 1st day of May, 1946, and in the conversation that petitioners had with the defendant, the defendant told petitioners that it was satisfactory with him for them to take a transfer of said lease agreement from the said M. Boyd. In said conversation the defendant further stated to petitioners that he, the defendant, was in the poultry business, operating a poultry-dressing plant, and that he wanted to sell to petitioners such poultry as they used to serve in said restaurant, which your petitioners agreed to do, and petitioners have purchased from the defendant all poultry served in said restaurant since they have been operating the same, except in a few instances in which the defendant was unable to supply their needs. The defendant then stated that they could occupy the premises as long as desired.
"16. The next day following the conversation above referred to your petitioners paid to the said M. Boyd the remainder of the purchase-price of said equipment, and entered into the operation of said restaurant and the occupancy of said premises, and the defendant accepted rents from your petitioners under the terms *Page 507 of said lease agreement up and until October 21st, 1946, at which time these petitioners gave notice of their intention to renew said lease agreement for an addition of two years, at which time the defendant made the statements to your petitioners as set forth in paragraph six of the original petition, this being the first intimation made by the defendant to the petitioners that he did not intend to permit a renewal of said lease.
"17. Your petitioners show that, during all the transactions referred to in this petition and amendments, the defendant's place of business was in the same building as leased premises herein described, and your petitioners conferred with the defendant from time to time with reference to the operation of said restaurant, and defendant was at all times fully cognizant of the occupancy of said premises by the plaintiffs and recognized them as his tenants."
On the same date, the defendant filed a demurrer, insisting upon his demurrer as previously filed, and demurring to the petition as finally amended, as follows:
1. The defendant demurs specially to and moves to strike paragraph 12 of the petition as amended, upon the following grounds: (a) The allegations of said paragraph are not germane to the petition as originally filed, the original petition being based upon alleged rights of the plaintiff under a transfer of a written lease attached to the petition, but said amendment is an attempt to set up a parol contract for the lease of the premises by the plaintiffs from the defendant. (b) The allegations of said paragraph are inconsistent with and repugnant to the allegations of paragraph six of the original petition, which allege "that defendant personally advised your petitioners that he did not regard or concede that these petitioners had a right to renew said lease agreement beyond the 14th day of November, 1946." (c) The allegations of said paragraph are insufficient to show any ratification by the defendant of the alleged transfer of said lease contract to the plaintiffs or recognition by the defendant that he is bound by the terms of said lease contract to the plaintiffs. (d) Said paragraph 12, taken alone or with the other allegations of the petition, is too vague and indefinite to be the basis of any liability in favor of the plaintiffs against the defendant.
2. The defendant demurs to and moves to strike paragraph 13 of the amended petition, upon the ground that the allegations *Page 508 thereof are insufficient to show that the plaintiffs have any right to the possession of the premises in dispute or that the defendant is under any obligation to accept any further rent from the plaintiffs.
The court on said date, January 18, 1947, overruled the demurrer, thus leaving the case pending in the trial court, as provided in the order of December 28, 1946, and the defendant, having previously excepted pendente lite to said order of December 28, 1946, assigned error in his final bill of exceptions both on his exceptions pendente lite and on the ruling therein complained of.