Under the facts of this case where the issues raised in a distress warrant proceeding and a dispossessory warrant proceeding are tried together with the consent of the landlord and the tenant, and where the jury finds in favor of the tenant in the distress warrant case and in favor of the landlord for past due rent, double rent and right of possession in the dispossessory warrant case the verdict against the tenant, and judgment entered thereon against the surety are not void as a matter of law and the court properly overruled the motion by the surety to vacate the judgment as to it.
ARGUED NOVEMBER 7, 1968 — DECIDED MARCH 3, 1969 — REHEARING DENIED MARCH 18, 1969.
On February 20, 1968, Paul Brayton caused a dispossessory warrant and a distress warrant to be issued against Trenton M. Richards. The amount of rent alleged to be due and the question of eviction involved the same premises. Counter-affidavits were filed in each case and one eventual condemnation money bond was filed which was by its terms made applicable to both cases, and on which Resolute Insurance Company was surety. No forthcoming bond was filed for the production of the personal property levied on in the distress warrant proceeding. The cases were consolidated for trial by consent and were tried together. The jury found in favor of the defendant in the distress warrant case and against him in the dispossessory warrant case. The verdict against the defendant was in favor of the dispossessory warrant in the amount of $1,451. The judgment was for the possession of the premises, $1,451 principal and $570 per month from the date of judgment for double rent until the surrender of the premises to the plaintiff. The defendant filed a motion for a new trial but did not pursue it. Resolute Insurance Company, surety, filed a motion to set aside the judgment in the dispossessory warrant case on the ground that the verdict was inconsistent and void on its face and on the ground that the discharge of the lien of the distress warrant by the verdict in that case impaired the surety's right of subrogation which fact discharged movant's liability on the bond by reason of the fact that the property levied on was returned to the defendant when no forthcoming bond was filed. The court overruled the motion of the surety to set aside the verdict and judgment against it in the dispossessory warrant case, from which it appeals and enumerates the judgment as error.
FELTON, Chief Judge.
1. In such a case the surety is absolutely bound by the judgment rendered against the principal and will not be heard to impeach or attack it in any way for causes which were or could have been a matter of defense by its principal. Ford v. Eskridge, 53 Ga. App. 466 (2) ( 186 S.E. 204), and cases cited. In this case the defendant tenant could have attacked the verdict as being inconsistent but abandoned his motion for a new trial.
2. "Issues formed by counter-affidavits filed to a distress warrant and to a proceeding to dispossess a tenant holding over respectively, are separate cases, and should not be tried together; but if a party consents that this be done, he cannot except thereto." Mitchell v. White, 74 Ga. 327.
3. "Verdicts shall have a reasonable intendment, and shall receive a reasonable construction, and shall not be avoided unless from necessity." Code § 110-105.
4. If it could be said that a surety may seek redress from a void judgment the construction of the two verdicts in this case is that the jury mistakenly inserted the finding for rent due under the distress warrant in the verdict in the other case and left it out of the distress warrant verdict. It is quite evident that the jury did not intend to find in favor of the defendant in the distress warrant case for the reason that the verdict was for eviction which was based on the nonpayment of rent and a holding over. If the jury had also found against the defendant in the distress warrant case as well as for stipulated rent due, found in the dispossessory warrant case, the verdicts would have shown a double recovery for past due rent. As for the loss of the right to subrogation in the distress warrant case that was not an issue in either of the cases, and, since there was no forthcoming bond given, the matter of the improper surrender of the property levied on was between the defendant and the sheriff and if the question could possibly be injected in such a case as this the sheriff would have to be made a party. In authority above cited these two kinds of cases should not be tried together and when parties agree on their being consolidated for trial, in the absence of fraud or collusion the parties must take the consequences of such a trial, especially in such a case as this where the intent of the two verdicts is so plain.
The court did not err in overruling the surety's motion to vacate the judgment against it.
Judgment affirmed. Eberhardt and Whitman, JJ., concur.
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