180 Ga. 331 | Ga. | 1935
In February, 1931, a landlord caused to be issued by a justice of the peace' a distress warrant for the sum of one hundred and seventy-five dollars for rent due. On the following day the sheriff in virtue of the warrant levied on described personal property. On the day of the levy the tenant and a surety executed a bond payable to the sheriff, in double the amount of the debt, conditioned to produce the property at the time and place of sale. Several days later the tenant made- oath by affidavit styled “a counter-affidavit and recoupment.” The papers were returned to the March term of the superior court. At the next August term, on motion of the plaintiff the counter-affidavit was dismissed because the tenant had failed to file “an eventual condemnation-money bond,” and the distress warrant was ordered to proceed. The sheriff proceeded to advertise the property to be sold on May 2, 1933.
The following statutes have been enacted. A distress warrant may issue for rent due “which may be levied by any constable, duly qualified, on any property belonging to said debtor, . . who shall advertise and sell the same, as in case of levy and sale under execution: provided, if the sum claimed to be due shall exceed $100, and said warrant shall be levied by a constable, it shall be his duty to deliver the warrant, with a return of the property levied upon, to the sheriff of said county or his deputy, who shall advertise and sell as provided by law for sheriff’s sales.” Code of 1910, § 5390; Code of 1933, § 61-402. “The party distrained may in all cases replevy the property so distrained, by making oath that the sum or some part thereof distrained for is not due, and giving security for the eventual condemnation money; and in such case the levying officer shall return the same to the court having cognizance thereof, which shall be tried by a jury as provided for in the trial of claims: provided, that when the levying officer shall retain possession of the property of the tenant levied on, it shall not .be necessary to give the bond for the eventual condemnation money.” Code of 1910, § 5391; Code of 1933, § 61-404. If “the tenant shall desire the possession of such property, it shall be the duty of the
The rulings announced in headnotes two to four, inclusive, do not require elaboration.
Judgment reversed.