Baird v. Smith , 124 Ga. 251 ( 1905 )

BecK, J.

(After stating the facts.) 1. Before this case was called for trial in the court below, the plaintiff in error filed objections to the answer of the justice of the peace, alleging that he had not fully set out in his answer the plaintiff’s evidence, that the plaintiff in error had testified “that he left his mother and sisters living in the house he rented from Smith, but told them they would have to make arrangements with Mr. Smith in regard to their remaining in the house any-longer after February 29,1904; that the house was rented by the month, and not by the year.” Whether these objections are such exceptions to the justice’s answer as are contemplated in the Civil Code, §4641', or whether they should be treated as a traverse pro tanto of the justice’s answer, the overruling and disallowing them was not erroneous, because from no point of view can the evidence recited in them be considered as material to the cause of plaintiff in error; for had the testimony alleged in said objections to have been omitted been included in the evidence as set forth in the justice’s answer, it could not have had the effect of altering or changing the judgment of the court, which was adverse to the defendant in the case. Bnder the testimony of Baird himself, he had rented Smith’s house by the month, and, although he left the house on February 29, he did not give his landlord, Smith, notice of his intention to quit until the second day of March. This notice was by letter which Smith did not receive until the third day of March; and it will be remembered that Baird had been occupying this house as a tenant by the month for three years, and his mother and sister, whom he had in the house with him — whether as renters or subtenants it is not necessary to discuss, continued to occupy the rented premises during the month of March.

2; The interrogatories should not have been suppressed for any reason argued in the objections of the plaintiff in error. It is true that the parties acting as commissioners had inade a mistake in the caption or preamble to the answer, and had referred to the case as one pending “in the justice court of Dooly county,” while as a matter of fact the case was pending in the justice’s court for the 120th district, G. M., of Kichmond county; but in the caption to the interrogatories, the case, as well as the court in which it was pending, was properly stated, and then at the head of the answers and immediately preceding the caption thereto the case was again correctly stated, and the answers and interrogatories were returned together to the proper court. There could exist no doubt as to the case for which the evidence was intended. “Even where the answers to interrogatories were headed with a case different from that stated in the questions and commission, but there appeared enough to show that the answers were really intended for this latter case, it was held that they might be read in this latter case.” Mathis v. Colbert, 24 Ga. 384.

Judgment affirmed.

All the Justices concur.