Bryant v. Mercier

9 S.E. 166, 82 Ga. 409

• Court: Supreme Court of Georgia
• Decided: March 18, 1889
• Status: Published

Opinion

Bleckley, Chief Justice.

A distress warrant for rent was sued out by Mercier against Bryant, in Early county, based upon an affidavit made before the judge of the county court, which officer issued the warrant. The affidavit alleged that Bryant was of that county. The sheriff of that county seized Bryant’s property, under the warrant, and he made affidavit denying that the sum distrained for was due and owing. Thereupon the papers were returned to the county court ; and at the succeeding term of that court, Bryant appeared and pleaded to the jurisdiction, on the ground that he was not a resident of Early county, but of Clay county. This plea being found true, the court passed an order transferring the case to the county count of Clay county. A trial was after-wards had in the latter court, and resulted in a judgment against Bryant, from which he entered an appeal to the superior court of Clay county. When the appeal came up for trial, he moved to dismiss the ease, (1) because the case was not properly brought in this court, no officer authorized by law having returned the papers to the court; (2) because the face of the papers showed want of jurisdiction in Clay superior court, nor did it appear; that Early county had jurisdiction to issue the warrant, the defendant being shown to be a non-resident of that county, and there being no allegation that he had property therein ; (3) because the order directing the transfer from Early county court to that of Clay county was null and void, and the papers were not returned to the latter court by any officer authorized by law to execute and return process as the law directs. The court granted leave to amend the affidavit on which the warrant was issued, by alleging therein that Bryant had property in Early county at the date of the original affidavit and warrant, and that his residence was then in Clay county. This amendment being made, the court denied the motion to dismiss the ease, and exe'eption was taken (1) to the allowance of the amendment, and (2) to the denial of the motion to dismiss.

1. The affidavit having been made on the 29th of October, 1887, the act of the 5th of October (acts 1887, p. 59) was applicable to it. This we understood to be conceded by counsel for the plaintiff in error, and for that reason he forebore to argue this point before us. The act seems to be decisive against him on the question.

2. It is true there was no jurisdiction in Early county to issue the distress warrant, unless Bryant, the defendant, resided in that county or had property there. Code, §4082. The jurisdictional fact alleged in the original affidavit was residence, but the actual facts which were afterwards introduced by amendment were, the possession. of property in that county, and residence in Clay county. The amendment related back to the date of the process, and cured- all defects both of issuing and returning the proceedings. The case may be treated, therefore, as if it had been returned to the county court of Clay county in the first instance. According to the authority of analogous cases, Clay being the county of the defendant’s residence, return should have been made to tlae proper court of that county. Hardeman vs. DeVaughn, 49 Ga. 596; Tharpe vs. Foster, 52 Ga. 79. It is trufe that in the latter case the execution was set aside because not made returnable to the court of the proper county; but in that case it never reached the proper court, and besides, as far as appears, no effort was made to amend it. Nor was any motion made to withdraw the papers for transfer to the proper county. A trial was had by consent on an agreed statement of facts. It would seem from the cases of Steamboat Co. vs. Torrent, 46 Ga. 585; and Cumming vs. Wright, 72 Ga. 767, that such a defect in tbe warrant would be amendable. See also Dawson vs. Garland, 70 Ga. 447. We need not, however, concern ourselves with that question now ; for in the present case there was no motion to quash or set aside the distress warrant, but the motion tyas to dismiss the case. We think it was properly overruled, and we leave the parties to deal with the specific question as to whether tbe warrant was amendable, or needed amendment, when that question shall be raised in the court below.

Judgment affirmed.