DuBignon v. Tufts

66 Ga. 59

• Court: Supreme Court of Georgia
• Decided: September 15, 1880
• Status: Published

Opinion

Crawford, Justice.

The questions brought before this court by joint bills of exception in the above case are—

(1). Whether an affidavit can be made and a warrant, issued by a justice of the peace of one county to dispossess a tenant holding over in another and different county.

(2}. Does the incorporation in the affidavit and warrant of personal property, sought also to be recovered, vitiate the proceeding as to- the realty.

(3). Should parol testimony be heard to establish the fact that at a preceding term a demurrer had been made on the same grounds to the affidavit and warrant, overruled by the court, and that the same was therefore res adjudicata.

1. The statute authorizing these proceedings, declares that the owner of lands or tenements, when thp same may be held over and beyond the term for which the same were rented or leased, may go before the judge of the superior court, or any justice of the peace, and make oath to the facts, and when so made the officer before whom it is made shall grant and issu.e a warrant or process, directed to the sheriff or his deputy, or any lawful constable of the county where the land lies, commanding and requiring him to deliver to the owner full and quiet possession thereof. Code, sections 4077-4078.

We see no error in the ruling by the court that a justice of the peace in Chatham county has full power and authority to administer the oath arid issue the warrant, as provided by the above named sections.

2. Whilst the incorporation of personal property in an affidavit and warrant of this character, is wholly unauthorized by law, we concur with the court below in holding that it was mere surplusage, without any legal effect, and could not destroy the right of the landlord to proceed to the extent of his legal remedy.

3. Upon the right of a party to show by parol what the judgment of a court of record was, we hardly think it necessary to say more than that such a proceeding as was insisted upon in this case is without precedent or authority. The judgment of the court, therefore, in both cases, is affirmed.