180 Ga. 739 | Ga. | 1935
1. “Equity will not enjoin the proceedings and processes of a court of law, unless there shall be some intervening equity or other proper defense of which the party, without fault on his part, can not avail himself at law.” Code of 1933, § 55-103.
2. The defendant in a distress warrant does not need the aid of a court of equity for the assertion of any of the following defenses: (1) that the rent claimed or some part thereof is not due (Code of 1933, § 61-404); (2) that the rent contract was terminated by agreement before the issuance of the distress warrant (Hawkins v. Collier, 101 Ga. 145 (2), 28 S. E. 632; Hancock v. Boggus, 111 Ga. 884, 36 S. E. 970; Bryan v. Morris, 143 Ga. 70 (2), 84 S. E. 120) ; (3) that the tenant has been damaged by the failure of the landlord to make necessary repairs (Drake v. Dawson, 66 Ga. 174 (2) ; Smith v. Green, 128 Ga. 90 (3), 57 S. E. 98; Weaver v. Roberson, 134 Ga. 149 (2), 67 S. E. 662; Dougherty v. Taylor, 5 Ga. App. 773, 63 S. E. 928); or (4) that the tenant was forced to vacate because the building became untenantable (Lewis v. Chisholm, 68 Ga. 40 (3)).
3. The city court of Oglethorpe would have jurisdiction to entertain each of such defenses, and it was not caiise for injunction that the distress warrant was made returnable to that .court. Ga. L. 1907, p. 215, § 2; Lathrop v. Clewis, 63 Ga. 282 (3) ; Myrick v. Dixon, 37 Ga. App. 536 (2) (140 S. E. 920) ; Arthur Tufts Co. v. DeJarnette Co., 158 Ga. 85 (5) (123 S. E. 16).
4. The petition for injunction, as filed by the defendant in the distress warrant, alleged no defense which could not be fully recognized and enforced in a court of law; and in such ease, where the petitioner asserts no claim or interest in the property, he can not resort to equity merely because of his inability to give bond in accordance with the statute. Hall v. Holmes, 42 Ga. 179; Brown v. Watson, 115 Ga. 592 (3) (41 S. E. 998) ; Johnson v. Thrower, 117 Ga. 1007 (2) (44 S. E. 846) ; Napier v. Varner, 149 Ga. 586 (2) (101 S. E. 580) ; Skinner v. Stewart Co., 166 Ga. 800 (3) (144 S. E. 261) ; American Security Co. v. Sealey, 173 Ga. 754 (161 S. E. 253). See also Hays v. Clay, 124 Ga. 908 (53 S. E. 399) ; Patterson v. Barron, 177 Ga. 159 (169 S. E. 899).
5. The petition failed to state a cause of action, and the court did not err in sustaining the general demurrer.
Judgment affirmed.
