1. Where a garnishee fails to allege, as required by Code 46-301 his inability to answer whether or in what manner he is indebted to the defendant or that a nonresident debtor owes him a debt not yet due, the status of indebtedness between him and the defendant is fixed as of the time when he files his answer to the summons of garnishment.
On October 9th, 1956, J. C. Estridge obtained an attachment issued by the Clerk of the Municipal Court, City of Augusta, against E. L. Shaw, a nonresident, to recover the sum of $186. Based on the attachment a summons of garnishment was issued wherein Janko was named garnishee. In due season the plaintiff filed a declaration in garnishment in conformity with the requirements of law. On December 24, 1956, the garnishee, Janko, filed his answer to the summons in which he alleged: That at the time of the service of said summons of garnishment, garnishee was indebted to the defendant in no amount and had in his possession no property of the defendant; between the service of said summons of garnishment, and the filing of this answer, this garnishee has become indebted to the defendant in no amount and has come in possession of no property of the defendant.
The plaintiff, Estridge, filed a traverse to the garnishee's answer in which he denied its every paragraph and allegation. The issue made by the answer and traverse was submitted to the Judge of the Municipal Court, City of Augusta, who presided without intervention of a jury. In support of his traverse the plaintiff called the garnishee, Janko, as a witness for the purpose of cross-examination. Janko testified upon cross-examination: "I was indebted to E. L. Shaw, the defendant in attachment, on October 9, 1956, the date upon which the summons of garnishment was served upon me by the Sheriff of the Municipal Court, City of Augusta; and I also had in my possession certain personal property belonging to E. L. Shaw and that this personal property was in my possession on October 9, 1956. I became indebted to E. L. Shaw also after October 9, 1956. My indebtedness to E. L. Shaw arose out of a lease of the premises known as 2424 Washington Road, Augusta, Richmond County, Georgia. Included in the lease was certain personal property, namely: Fireplace set, 7 pieces; 2--3/4 ton Admiral air conditioners; 2 pr. draw curtains; 4 pr. draperies; stove and refrigerator. The date of the lease was May 19, 1956, and the rental was $95 per month. I had paid to E. L. Shaw $95 and $146 to the Municipal Court, City of Augusta, in response to a summons of garnishment in a previous case. The total rent due E. L. Shaw from the date of the lease to December 24, 1956, was $570, of which I had paid to E. L. Shaw $95 and to the Municipal Court, City of Augusta, under a previous garnishment $241.40, leaving a balance of $328.60 that would normally be due E. L. Shaw for rent under the lease between me and E. L. Shaw at the time of my answer December 24, 1956. I continued in possession of personal property belonging to E. L. Shaw after October 9, 1956. The Sheriff of the Municipal Court levied on 1--Philco refrigerator, model J742, serial 4aj113335, and 1--Dixie gas stove, on or about November 29, 1956, as the property of Edward L. Shaw and being a portion of the personal property in my possession belonging to E. L. Shaw. The Sheriff of the Municipal Court levied on 1--7 pc. fireplace set and 2--air conditioning units on the 12th day of December, 1956, as the property of Edward L. Shaw and being a portion of the personal property in my possession belonging to E. L. Shaw. That notwithstanding the levy, that said property remained in my possession, and that I was not deprived of the use of the property during the time I resided at the premises under lease from E. L. Shaw. I moved from the premises under lease from E. L. Shaw on the 14th day of January, 1957. I had in my possession a refrigerator, stove, 2--air conditioning units, 7 pc. fireplace set, 2 pr. draw curtains, 4 pr. draperies and a wheelbarrow belonging to E. L. Shaw on October 9th, 1956, and I still had these items in my possession on December 24th, 1956. However, the Sheriff of the Municipal Court, City of Augusta, had levied on the refrigerator and stove on or about November 29, 1956, and the sheriff again levied on the 7 pc. fireplace set and two air conditioning units on the 12th day of December, 1956. I was allowed to retain possession of these articles under trust receipt from Sheriff of Municipal Court and agreement of the bank. Furthermore, I have in my possession at this time the 2 pr. draw curtains and 4 pr. draperies and a wheelbarrow. The sheriff did not levy on the 2 pr. draw curtains, 4 pr. draperies and the wheelbarrow."
Later Janko testified as a witness in his own behalf: "I entered into the lease with E. L. Shaw for the recital of the premises known as 2424 Washington Road, Augusta, Georgia, together with certain personal property located on the premises, namely, one 7 pc. fireplace set, 2--3/4 ton Admiral air conditioners, 1--stove, 1--refrigerator, 2 pr. draw curtains, and 4 pr. draperies. The lease commenced on July 1st, 1956, and was for a period of one year with an option for another year. The rental provided in the lease was $95 per month. I paid Shaw the sum of $95 for the rent due July, 1956. Early in August, 1956, I was served with a summons of garnishment. I answered this garnishment the last week in September, 1956, and paid into court the sum of $146.40. In the early part of October 1956, I was served with two garnishments, one of which was the instant garnishment. I answered the instant garnishment on December 24, 1956, answering not indebted. In the early part of October 1956, I was advised by an agent of Blanchard & Calhoun Realty Company, Augusta, Georgia, for E. L. Shaw, that the premises at 2424 Washington Road, Augusta, Georgia, were going to be foreclosed under a mortgage. On November 29, 1956, 1 Philco refrigerator and 1 Dixie gas stove were levied on by the Sheriff of the Municipal Court, City of Augusta, under a mortgage foreclosure executed by Edward L. Shaw in favor of the Georgia Railroad Bank & Trust Company of Augusta, Georgia. These items of personal property were sold at public outcry on December 10, 1956, and bought in by the bank. On December 12, 1956, 7 pc. fireplace set and 2 Admiral air conditioning units were levied on by the Sheriff of the Municipal Court, City of Augusta, under a mortgage foreclosure proceeding of the same mortgage between Shaw and Georgia Railroad Bank & Trust Company. These items of personal property were sold at public outcry on January 7, 1957, and bought in by the bank. From the time I paid $146.40 into court on September 24, 1956, until the time I answered the instant garnishment on December 24, 1956, I did not pay Shaw or his agent any rent. The reason that I did not pay the rent was that I considered that there had been a breach of my lease contract by Shaw because of the foreclosure of the mortgage and the sale by the bank of the personal property covered by the lease, and I had suffered and would suffer damage because of this breach in excess of the amount of rent due Shaw; my investigation revealed that Shaw was a nonresident of the
State of Georgia and that Shaw was insolvent. On January 14, 1957, I moved into a house on Henry Street, Augusta, Georgia, under a written lease at a monthly rental of $110. My new lease was for the house alone without any personal property. The difference in my monthly rental was $15 per month. The remaining term under my lease with Shaw was 17 1/2 months. As a result of the breach of said lease contract by Shaw, I was damaged in the amount of $262.50. I was deprived of the use of the refrigerator, stove, air conditioning units and fireplace set which were foreclosed under the mortgage for the remainder of the term of my lease with Shaw, namely, 17 1/2 months; and that the reasonable rental for these items of personal property was $10 per month; and I, therefore, was damaged in the amount of $175. That in December 1956, I purchased from the Georgia Railroad Bank & Trust Company the refrigerator which was foreclosed under the mortgage for $54.25, including principal and interest. I subsequently purchased a stove for $125. Upon moving from the premises under lease from Shaw on January 14, 1957, I incurred an expense of $53.26 in moving. From the time that I leased the premises from Shaw to date, I have lost three days from my work in order to confer with my attorney, appear in court and attend conferences at a total loss to me of $90. I was damaged in an amount in excess of $500 and this would be more than the amount due Shaw for rent. A representative of the Georgia Railroad Bank, who instituted foreclosure proceedings resulting in the levy on the fireplace set, air conditioning units, stove and refrigerator, informed me that I could have the draperies, curtains and wheelbarrow, inasmuch as these things belonged to the bank."
The lease contract between the garnishee and the defendant and the attachment were introduced in evidence. The parts of the same material to a clear understanding of this case read: "This indenture of lease made and entered into this 19th day of May, 1956, between Edward L. Shaw, of the first part, hereinafter called lessor, and Morris Janko, of the other part hereinafter called lessee.
"Witnesseth, that the lessor, in consideration of the rent herein reserved and agreed to be paid by the lessee, and of the covenants and agreements herein expressed and contained to be performed by the lessee, does hereby rent and lease unto said lessee, the following described property to wit: #2424 Washington Road, Richmond County, Georgia.
"Said premises shall be leased for a term of one (1) year, beginning on July 1, 1956 and expiring June 30, 1957 at a monthly rental of ninety-five ($95) dollars, payable in advance, and the lessee shall have the option to renew this lease under the same terms, rental and conditions.
"It is further agreed that the lessor shall leave the following described property on the premises for the use of the lessee, with the understanding that the lessee shall maintain the said property, natural wear and tear excepted: Fireplace set--4 pieces; 2--3/4 ton Admiral air conditioners; 2--pr. draw curtains; 4--pr. draperies; stove and refrigerator."
The trial judge entered a judgment overruling and dismissing the plaintiff's traverse to the garnishee's answer. To this judgment the plaintiff objects by direct bill of exceptions, which is permissible under the act creating the Municipal Court, City of Augusta, and the case is here for review.
1. The first ground of exception to the judgment complains that over timely objection of the plaintiff the garnishee was permitted to testify that by reason of the breach of a contract by the defendant certain damages were sustained by him subsequent to the filing of his answer. The contract referred to was a contract by the terms of which the defendant rented certain premises to the garnishee, and for the same consideration and as a unit with the rented premises hired to him certain articles of personalty. The articles were adapted to use with the premises for the purpose they were let. The garnishee contends that while the damages he sustained accrued after the filing of his answer, the breach of the contract from which they flowed occurred prior thereto. The facts which he insists constituted the breach of the contract by the defendant were that some of the articles hired with the rented premises were levied on and sold under a mortgage execution which issued against the defendant.
In order to make clear our ruling as to the special ground of exception we review some of the principles relative to defenses in garnishment cases.
The plaintiff debtor is generally referred to as the defendant in garnishment or simply as the defendant.
The right of the garnishee to set off or have balanced against debts and demands due him by the defendant is clearly stated in Holmes v. Pope & Fleming, 1 Ga. App. 338 (2) (58 S. E. 281).
The lien of garnishment is held to attach when the summons is served and to impress all sums that become due by the garnishee to the defendant in the interim between the service of the summons and the filing of the garnishee's answer. When the answer of the garnishee is filed the status of indebtedness between the defendant and the garnishee upon which the right and quantum of the plaintiff's recovery depends, becomes fixed. The plaintiff's right of recovery is not thereafter affected, increased nor diminished by debts or demands accruing to the credit of the defendant or garnishee against the other. The rule has a notable exception. When there has been a breach of a contract or the commission of a tort by the defendant from which, though not accrued when the garnishee's answer is filed, damages will flow to the garnishee, or where events have transpired when the answer is filed that render it certain that the defendant will become liable to the garnishee for a debt or demand that has not then matured.
Code 46-301 contains the provision: "If the garnishee shall be unable to answer as herein provided, his inability shall appear in his answer, together with all the facts plainly, fully, and distinctly set forth, so as to enable the court to give judgment thereon."
In the circumstances stated the garnishee may set up in his answer that for certain reasons, such as pending equities between him and the defendant, he is unable to answer or in what amount he is indebted to the defendant or whether property, money or effects in his hands belong to the defendant and thus prevent a judgment being entered against him, until the eventual status of liability between him and the defendant may be ascertained.
But in order for the garnishee to claim the benefit of the quoted provision of Code 46-301 he must meet its requirements and set up in his answer that he cannot answer the summons of garnishment at the time required by law, and allege the reasons for his inability to answer. In this case the garnishee's answer simply denied liability and there is no allegation of inability of the defendant to answer the garnishment. Consequently, the testimony objected to was inadmissible and should have been excluded. But not only was no allegation contained in the garnishee's answer that he was unable to answer the summons of garnishment as required by the Code section, but the evidence adduced upon the trial showed no breach of the contract by the defendant before the garnishee's answer was filed, or that events had transpired at that time that rendered certain there would be such breach subsequent to the filing of the answer from which damages would flow to the garnishee.
The articles of personalty had been levied upon and sold under the mortgage execution but had not been taken from the possession of the garnishee. The rule is stated in 52 C. J. S. 167, 448: "No eviction of a tenant arises from the institutions or pendency of a suit to foreclose a mortgage covering the demised premises, or even from the entry of judgment of foreclosure and sale."
The text refers specially to the effect of the sale of the landlord's realty under mortgage execution against him pending a lease or rental contract, but it is equally applicable to personalty held as a unit with the rented realty.
A similar holding is Dwinell v. Brown, 65 Ga. 438 (38 Am. R. 792): "One in possession of land under a claim of right renting it to a tenant, who enjoys the full term of the lease without being interrupted or required to attorn to another, the tenant cannot recover back the money paid to his landlord, though the same land may afterwards be recovered from his landlord by action of ejectment, or by a voluntary surrender thereof to a superior title without suit."
The evidence did not establish facts transpiring previous to the filing of the answer which would subsequently result in a breach of the contract on the defendant's part, and consequent damages to the garnishee.
In the first place, while the articles of personalty were levied on and sold, there was nothing in the evidence from which it could be inferred that the defendant, if notified of the levy and sale, would not either redeem those articles or supply the garnishee with comparable chattels before he was deprived of the articles' possession or use.
Furthermore, the evidence shows without dispute, indeed by the garnishee's own testimony, that at the time he filed his answer he owed the defendant an amount in excess of that to which the plaintiff's garnishment lien attached, and from that time he remained in arrears with his rent. In such circumstances it was the statutory right of the defendant, his landlord, to immediately repossess the rented premises in the manner prescribed by Code 61-301. The premises were rented with the personalty as a unit and the repossession of the former would rescind the contract as to the latter.
It follows that the testimony objected to was inadmissible and should have been excluded.
2. The second exception that the judgment is without evidence to support it, is insisted upon. The judgment was in effect a finding that the garnishee was entitled to damages equal to or in excess of the $328 he admittedly owed the defendant for rent.
On a traverse of a garnishee's answer, as in this case, the burden is on the plaintiff to sustain the traverse by a preponderance of the evidence. Rockmart Bank v. Nix, 14 Ga. App. 238, 240 (80 S. E. 673); Rainey v. Eatonton Co-Operative Creamery, 69 Ga. App. 547 (4) (26 S. E. 2d 297). But where, as here, the garnishee after denying by his answer that he was indebted to the defendant in any amount, admits by his testimony that he was indebted to the defendant in a stated sum at the time the answer was filed, the burden of evidence shifts, and the onus is on the garnishee to prove the existence and validity of any counterclaim that he seeks to set off against the debt owed by him to the defendant. Code 38-103; Gem Knitting Mills v. Empire Printing &c. Co., 3 Ga. App. 709 (3) (60 S. E. 365). In carrying such burden he must adduce evidence as to the items of damage he claims and proof of their amounts. The only evidence offered by the garnishee in this case to prove the items and amounts of damages he claimed we have held was inadmissible. The rule is that evidence erroneously admitted is not considered in passing on the sufficiency of evidence to support a particular finding by a trial judge in passing on issues of fact. 3 Am. Jur. 593, 1037; 53 Am. Jur. 781, 782, 1125; Maxey-Barton Organ Company v. Glen Building Corp., 355 Ill. 228 (189 N. E. 326, 95 A. L. R. 321 (6)).
The garnishee sought to have set off a balance against the debt he admittedly owed the defendant for rent damages which appropriately compensate a tenant for wrongful eviction by his landlord. It is his contention that the defendant constructively evicted him from the rented premises by permitting certain articles of personalty hired with the premises to be levied on and sold under a mortgage execution issued against the defendant.
The elements of proof necessary to establish constructive eviction for the tenant's being deprived by the landlord of personalty rented with the realty are: that the tenement and chattels are let and hired as a unit; that the landlord intentionally and wrongfully prevented the tenant's use or possession of the chattels during his occupancy of the tenement; that use or possession of the chattels is essential to the occupancy and enjoyment of the tenement and their loss to the tenant renders the tenement so unfit for the purposes contemplated by the rental contract as virtually to oust the tenant from possession.
The evidence adduced on the trial showed the existence of the first element, that the realty was rented and the articles of personalty were hired as a unit, but there was no evidence that the defendant caused the personalty to be taken from the garnishee's possession. The garnishee himself testified that he was not deprived of use or possession of the chattels during his occupancy of the rented premises. Levy and sale of the articles alone, not followed by the loss of their possession did not constitute a breach of the rental contract. Supporting authorities for this holding are: 52 C. J. S. 167, 448; 52 C. J. S. 242, 480 (2); 52 C. J. S. 481, 480; Dwinell v. Brown, 65 Ga. 438, supra. No proof was submitted as to whether and to what extent the articles of personalty affected the use and enjoyment of the tenant for the purposes contemplated by the rental contract.
The garnishee insists that he was compelled to purchase an article of personalty in order to prevent the loss of its use. The evidence does not support the contention, but for the sake of discussion we will concede that it did. The result of the garnishee, even under the compulsion of preventing the article being taken from his possession, acquiring permanent title to it did not, and if such article was absolutely necessary to the use of the rented premises, work the garnishee's constructive eviction from the premises. Its effect, in such circumstances, assuming that they existed, was to prevent the articles' removal from the rented premises and to circumvent constructive eviction. That a tenant may, and in some circumstances must if he is able, act so as to lessen or prevent damage to himself from his landlord's breach of the rental contract is an established principle of law. In the case of McNaughton v. Stephens, 8 Ga. App. 545, 546 (70 S. E. 61) it was held: "We think this was sufficient reduction, when it was within the power of this defendant as a tenant to have had the repairs made himself, and set off the necessary expense against his landlord's claim for rent; and it was his duty, as the damages were consequent upon a breach of the contract, to have used ordinary care and diligence to lessen his damages as far as practicable."
The result of the garnishee's acquisition of title to the article of personalty was that from the time it was acquired and only while he occupied the premises his rent was reduced.
The items of damages were not recoverable for the reason that no data was furnished by the garnishee's proof from which the jury could decide whether the damages claimed were just, excessive, or inadequate compensation for the losses claimed. Brenard Mfg. Co. v. Winn-Wilkes Drug Co., 31 Ga. App. 200 (1) (120 S. E. 446), " 'Whenever one party to a case claims special damages against the other, he has the burden not only of showing that he has been damaged as alleged, but also of furnishing to the jury data sufficient to enable them to estimate with reasonable certainty the amount of the damages.' National Refrigerator &c. Co. v. Parmalee, 9 Ga. App. 725 (1) (72 S. E. 191)."
However, had the evidence been explicit, the garnishee was not entitled to recover expenses of making his answer, since under the evidence, its verity was not established. Only the expense of making a true answer can be recovered by Code 46-308, and the expense of defending the answer against traverse was not allowable. Darnall & Susong v. Wood & Brother, 82 Ga. 556 (9 S. E. 282). Obviously, no right of recovery by the garnishee for the expense of removing from the rented premises existed, when at the time of his removal he was much in arrears with rent due the defendant, and the latter had the right to require him to vacate.
The judgment was without evidence to support it; indeed, the garnishee's own proof established the truth of the plaintiff's traverse to the answer and demanded a judgment for the plaintiff.
Judgment reversed. Felton, C. J., and Nichols, J., concur.