Kennon v. Petty

Supreme Court of Georgia

Kennon v. Petty

59 Ga. 175

CourtSupreme Court of Georgia

DecidedAugust 15, 1877

StatusPublished

Cited by2 cases

This text of 59 Ga. 175 (Kennon v. Petty) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kennon v. Petty, 59 Ga. 175 (Ga. 1877).

Pincite

Opinion

Warner, Chief Justice.

This was a proceeding by the plaintiff against the defendant, as a tenant holding over, under, the provisions of the §4077th of the Code. The defendant filed a counter affidavit, in which he alleged that the time for which he rented the premises had not expired, and that he did not hold the same under the plaintiff by rent or lease. When the case came on for trial, before the introduction of any testimony, the defendant made a motion to dismiss the plaintiff’s case, which motion was granted, on the ground that at the time of the issuing of the plaintiff’s warrant, on the 10th of March, 1874, there was another warrant pending in said court between the same parties for the same cause of action, dated 24th of June, 1871; whereujDon the plaintiff excepted.

1. Assuming that there was another warrant pending in said court between the same parties, for the same cause, of action (and as to that fact, we express no ojfinion), it was error to dismiss the plaintiff’s case on the defendant’s motion, without any plea to that effect having been filed, as required by the 3476th and 3456th sections of the Code. See Killen vs. Compton et al., 57 Ga. Rep., 63.

2. The motion to dismiss the plaintiff’s case was not made at the first term of the court to which the warrant, by law, was made returnable, even if that had been the proper remedy; but the motion was made at a subsequent term, to [177]*177wit, the trial term of the case, in March, 1877, whereas the warrant was sued out by the plaintiff, and the counter affidavit made by the defendant, in March, 1874.

Let the judgment of the court below be reversed.

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

Warner, Chief Justice.

This was a proceeding by the plaintiff against the defendant, as a tenant holding over, under, the provisions of the §4077th of the Code. The defendant filed a counter affidavit, in which he alleged that the time for which he rented the premises had not expired, and that he did not hold the same under the plaintiff by rent or lease. When the case came on for trial, before the introduction of any testimony, the defendant made a motion to dismiss the plaintiff’s case, which motion was granted, on the ground that at the time of the issuing of the plaintiff’s warrant, on the 10th of March, 1874, there was another warrant pending in said court between the same parties for the same cause of action, dated 24th of June, 1871; whereujDon the plaintiff excepted.

1. Assuming that there was another warrant pending in said court between the same parties, for the same cause, of action (and as to that fact, we express no ojfinion), it was error to dismiss the plaintiff’s case on the defendant’s motion, without any plea to that effect having been filed, as required by the 3476th and 3456th sections of the Code. See Killen vs. Compton et al., 57 Ga. Rep., 63.

2. The motion to dismiss the plaintiff’s case was not made at the first term of the court to which the warrant, by law, was made returnable, even if that had been the proper remedy; but the motion was made at a subsequent term, to [177]*177wit, the trial term of the case, in March, 1877, whereas the warrant was sued out by the plaintiff, and the counter affidavit made by the defendant, in March, 1874.

Let the judgment of the court below be reversed.

Cite This Page — Counsel Stack

Bluebook (online)

59 Ga. 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennon-v-petty-ga-1877.

Opinion

Related

Cite This Page — Counsel Stack