1. Where, as in the instant case, the affidavit verifying a petition for certiorari contains a statement that the petition is not filed for the purpose of delay only, but fails to aver that the facts stated in the petition so far as they come within the knowledge of the petitioner are true, and this defect is not questioned until after the petition for certiorari has been sanctioned by the judge of the superior court, it being raised first on a hearing called especially for the purpose of passing upon exceptions to the answer of the trial judge, the defect is cured if the answer of the trial judge supports and corroborates the averments of this petition in all material particulars. Williams v. Mangum, 119 Ga. 628 (46 S.E. 835); Taylor v. Gay, 20 Ga. 77 (3); Taylor v. State, 118 Ga. 52 (44 S.E. 834); Horton-Hughes Furniture Co. v. Broad Street Hotel Co., 22 Ga. App. 89 (95 S.E. 373).
2. (a) Where, under the Emergency Price Control Act of Congress, approved January 30, 1942, as amended, an apartment in a rental area has been duly registered as a fully furnished apartment at a certain rental, and a subsequent purchaser of the property continues to rent the property for the same rental to the same tenant after the furnishings have been removed from the apartment, and where the new landlord registered the apartment as an unfurnished apartment, and later, upon complaint of the tenant, the Rent Director of the defense-rental area issued an order proposing a reduction in the rent because said apartment had become an unfurnished apartment, and made the same retroactive to the date when said property was purchased by the second landlord, and the representative of the Rent Director sent the second landlord a letter ordering him to refund the difference in the rent collected and the reduced amount, the situation is a "first rent" under the regulation of the Office of Price Administration, Part 1388 Rental *Page 680 Area, and the second owner, under such circumstances, had thirty days within which to refund the overpayment to the tenant.
(b) If the second owner during said thirty day period after such order, tenders the sum due the tenant because of such reduction, and the same is refused by such tenant, and the landlord makes a continuing tender of the same which is refused by the tenant, and upon being sued by the tenant for treble damages under the O. P. A. regulation, files the sum found to be due in court as a continuing tender, the tenant is not entitled to recover treble damages and attorney's fees under the aforesaid regulations.
(c) The fact that the second landlord may have been discourteous to a representative of the Rent Director does not alter this rule.
3. Where an apartment has been registered as a furnished apartment with the appropriate defense-rental area Office of Price Administration, and the ceiling price for the rental thereof has been fixed, and later a purchaser of the apartment rents it unfurnished to the same tenant for the same rental, the second landlord has not wilfully refused to refund an overpayment established by a subsequent order fixing the amount thereof, until the same has been fixed by an order of the proper officer of the Office of Price Administration, and until he has had a thirty-day period thereafter in which to comply with such order, because he cannot wilfully refuse to make a refund until he knows the amount of the refund. In such case the amount of the refund is not determined until the order is passed by the proper officials.
She further alleged that this apartment was sold to the defendant Harvill on September 1, 1944, and that after this date she continued to rent it from him as an unfurnished apartment, but that he did not reduce the rent in accordance with the requirements of the Office of Price Administration. She then made application to the defense-rental area office for a reduction in the rents. The defendant had previously registered said apartment with the defense rental area office as an unfurnished apartment.
After an investigation, the Rent Director ordered a reduction in the rent from $30 per month to $22.50 per month to take effect from September 1, 1944, and ordered the defendant to repay to the tenant $7.50 per month, totaling the sum of $37.50. *Page 681
Within 30 days after such order the landlord tendered the sum required to the tenant, and to the attorney of the defendant, both of them refusing the same, whereupon the landlord made a continuing tender. Suit was filed for treble damages and attorney's fees under the Emergency Price Control Act of Congress, approved January 30, 1942, as amended, upon the ground that the landlord had wilfully refused to comply with the order.
Upon the trial of the case, a verdict was rendered by a jury in favor of the plaintiff for the penalty, and attorney's fees were assessed against him by the court under the provisions of the Price Emergency Control Act.
The defendant filed a motion for new trial, which was overruled, and then brought the case before the Judge of the Superior Court of DeKalb County by a petition for certiorari. The affidavit verifying the petition made by the plaintiff in certiorari complied with the statute in every particular except that it did not allege that the facts in so far as they came within his own knowledge were true.
The judge sanctioned the certiorari and ordered the trial judge to make an answer thereto. The trial judge made his answer, and, at a hearing on the question of excepting to the answer of the trial judge, the defendant in certiorari moved to dismiss the petition for certiorari on the ground that it was not verified as required by law, and that its material allegations were not verified by the answer of the trial judge.
This motion was overruled, and the court at a later hearing entered an order sustaining the certiorari and setting aside the judgment rendered in the court below.
The defendant in certiorari duly excepted to the order refusing to dismiss the certiorari, and to the judgment sustaining the petition and setting aside the judgment rendered in the court below, and these are the two questions before this court for decision. 1. The judge of the superior court did not err in overruling the motion to dismiss the petition for certiorari upon the ground that it was not properly verified. It has been held both by the Supreme Court and the Court of Appeals that, even though a petition for *Page 682 certiorari had not been properly verified, where the affidavit does contain the recital that the petition for certiorari was not filed for the purpose of delay only, a failure to comply otherwise with the statute is good ground for refusing to sanction the petition for certiorari; and had the objection been made to the judge of the superior court at the time the petition was presented to him for sanction, and before he had sanctioned it, the objection would have been good. See Williams v.Mangum, 119 Ga. 628 (supra), citing Paulk v. Hawkins,106 Ga. 206 (32 S.E. 122). After the petition has been sanctioned and the answer of the magistrate filed, verifying the substantial allegations of the petition, it is too late to dismiss the certiorari for such defect in the affidavit.
The case of Horton-Hughes Furniture Co. v. Broad StreetHotel Co., 22 Ga. App. 89 (supra), is not in point, because in that case there was a total lack of an affidavit by the plaintiff and there was no recital under oath that the petition for certiorari was not filed for the purpose of delay only.
While it is the contention of counsel for the plaintiff in error that the answer of the trial judge did not verify the allegations of the petition for certiorari in all material respects, yet counsel failed to point out wherein it failed to do so, and an inspection of the answer of the trial judge does not reveal a failure to verify any material allegations of the petition. In view of these circumstances, the judge of the superior court did not err in overruling the motion to dismiss the petition for certiorari.
2, 3. This is a suit for treble damages as a penalty for an alleged violation of an order of the Office of Price Administration, in that the defendant in the suit demanded and received for the use and occupancy of housing accommodations in a defense-rental area a rental in excess of the maximum rentals which could be demanded and charged under the Emergency Price Regulations.
Under maximum-rent regulations, Part 1388, Defense-Rental Area, where there had been a registration of property, there could be no violation of the regulation, where the status of the property had changed, until the new rental rate was established and there was a refusal to comply therewith. This is obviously true because the new rental had to be fixed and approved by the Rent Director.
The undisputed evidence in the case, as disclosed by the record, is that the defendant landlord had registered with the appropriate *Page 683 officials, and had registered the property as an unfurnished apartment. This being true, the evidence disclosed by the record shows that he had fully complied with all of the regulations, and was not in violation in any way until after a new order was passed reducing the rent.
Robert L. Green, Rent Director, testified that "Normally, this situation, that is, the removal of furniture from an apartment, such as Mr. Harvill did or allowed, would be considered as a first rent," and then added, "But Mr. Hilly and myself decided that Mr. Harvill's apartment could not be considered as a first rent." He also testified that "Normally, a landlord has thirty days within which to repay an overcharge or difference in rentals," but stated that Mr. Harvill's case was different.
We think that he correctly construed the law, but he did not show any reason why the case of Mr. Harvill should differ from that of any landlord, and we do not find that there are any facts warranting a difference under the law.
This being true, since Mr. Harvill tendered the sum required to be paid by the Office of Price Administration within the time prescribed by law, and the same was refused by the tenant, and a continuing tender was made, and the amount fixed by the Office of Price Administration has been filed in the trial court, it appears without dispute that the landlord was not subject to pay the penalty provided by the act.
Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.