Johnson v. United Brotherhood of Carpenters Local No. 256

Court of Appeals of Georgia

Johnson v. United Brotherhood of Carpenters Local No. 256

94 S.E.2d 38, 94 Ga. App. 113

Court of Appeals of Georgia·Decided June 26, 1956·No. 36211·Published

Opinion

Quillian, J.

When a distress warrant has been issued, the only method by which it may be arrested is for the party distrained to file a counter-affidavit alleging that the sum, or some part thereof, distrained for is not due. Code § 61-404. It is unnecessary to give an eventual condemnation money bond if the tenant does not desire to retain possession of the property. Speed Oil Co. v. Aldredge, 192 Ga. 285 (1b) (15 S. E. 2d 214). In the case at bar, the tenant having failed to file a counter-affidavit, the trial court had no jurisdiction to decide any issues, whether on motion to dismiss the levy or otherwise. Smith v. Green, 34 Ga. 178; Kennedy v. Miller, 179 Ga. 234 (175 S. E. 588); Northside Farmers Market v. Wright, 78 Ga. App. 622 (52 S. E. 2d 34); Arnold v. Selman, 83 Ga. App. 150 (62 S. E. 2d 919). The trial judge did not err in denying the motion to dismiss the levy. While a void distress warrant cannot legally proceed against the defendant’s property, the question of the validity of the distress warrant issued in this case is not now before the court.

Judgment affirmed.

Felton, C. J., and Nichols, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Quillian, J.

When a distress warrant has been issued, the only method by which it may be arrested is for the party distrained to file a counter-affidavit alleging that the sum, or some part thereof, distrained for is not due. Code § 61-404. It is unnecessary to give an eventual condemnation money bond if the tenant does not desire to retain possession of the property. Speed Oil Co. v. Aldredge, 192 Ga. 285 (1b) (15 S. E. 2d 214). In the case at bar, the tenant having failed to file a counter-affidavit, the trial court had no jurisdiction to decide any issues, whether on motion to dismiss the levy or otherwise. Smith v. Green, 34 Ga. 178; Kennedy v. Miller, 179 Ga. 234 (175 S. E. 588); Northside Farmers Market v. Wright, 78 Ga. App. 622 (52 S. E. 2d 34); Arnold v. Selman, 83 Ga. App. 150 (62 S. E. 2d 919). The trial judge did not err in denying the motion to dismiss the levy. While a void distress warrant cannot legally proceed against the defendant’s property, the question of the validity of the distress warrant issued in this case is not now before the court.

Judgment affirmed.

Felton, C. J., and Nichols, J., concur.

Johnson v. United Brotherhood of Carpenters Local No. 256, 94 S.E.2d 38, 94 Ga. App. 113 (Ga. Ct. App. 1956).

Pincite

94 S.E.2d 38 (Johnson v. United Brotherhood of Carpenters Local No. 256) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related