170 Ga. 483 | Ga. | 1930
J. C. Watkins made the statutory affidavit seeking to evict J. C. Anderson from described premises, it being averred that Anderson was the tenant of Watkins and was holding said premises “over and beyond the term for which the same were rented or leased to him.” Anderson filed a counter-affidavit asserting that “he is not the tenant of the said J. C. Watkins, that he is not holding the said house and premises under or by virtue of lease or contract of rental from the said J. C. Watkins; that he does not hold said house and premises either by lease, rent, at will
We are of the opinion that this court is without jurisdiction to decide the question raised in the present writ of error. The eviction proceeding instituted by Watkins was resisted by Anderson by filing a counter-affidavit denying tenancy. Thus was presented the only issue which can properly be determined in such a case, that is, tenancy or no tenancy. Watson v. Toliver, 103 Ga. 123 (29 S. E. 614); Jordan v. Jordan, 103 Ga. 482 (30 S. E. 265); Patrick v. Cobb, 122 Ga. 80 (49 S. E. 806). It is evident that the present proceeding is not an “equity case,” and, indeed, it appears from the agreed statement of facts that there is an equitable petition (the substantial allegations of which were incorporated in the agreed statement of facts as evidence in the present proceeding) relating to the premises in dispute, which is still pending in the trial court. Our decision in this case is controlled by the ruling in Arnold v. Water Power & Mining Co., 147 Ga. 91 (92 S. E. 889), wherein it was said: “In Patrick v. Cobb, 122 Ga. 80 (49 S. E. 806), this court held that ‘An issue made by the filing of a counter-affidavit to a summary proceeding to eject a tenant, under the Civil Code, § 4813 [C. C. (1910), § 5385] et seq., is tenancy or no tenancy, and the question of the plaintiff’s title is not involved.’ It seems clear, therefore, that the present case does not involve ‘title to land,’ and that this court has no jurisdiction under the constitution.” It appearing that the Supreme Court has no jurisdiction of this case and that the Court of Appeals has jurisdiction thereof, direction is given that it be
Transferred to the Court of Appeals.