80 Ga. 617 | Ga. | 1888
It appears from the record in this case that on February 8th, 1883, Thomas Clark made an affidavit alleging that he had rented a certain house and lot to Thomas Lee, and that the term of renting had expired; upon which affidavit the magistrate issued a warrant to dispossess Lee of the premises. On February 12th, Lee filed a counter-affi
It will be observed from the facts above recited, that the counter-affidavit of Lee had been dismissed by the court, and that a motion to reinstate the same was pending
We think the point is well taken. The counter-affidavit is the means of bringing the case into the superior court, and giving that court jurisdiction of these kind of cases. Whenever the counter-affidavit is so defective as not to make any issue, or when the same has been dismissed by the court, the whole case goes out of court. There is no case for the court to try. By operation of law the warrant is withdrawn from the court, and returns into the hands of the sheriff or other officer to whom it is directed. In the case of Habersham vs. Eppinger & Russell, 61 Ga. 199, this court held, that it is the counter-affidavit which brings the case into the superior court, and “ unless that was legal, it was the duty of the sheriff to go on with his levy and sale; and when the court dismissed that counter-affidavit because it was illegal, the case was no longer in that court, and it had no jurisdiction to pass the order or render the judgment dismissing the plaintiff’s warrant or setting it aside. The case, by operation of law, was remanded to the sheriff, and the superior court had no jurisdiction of it further.” See also Drake vs. Dawson, 66 Ga. 174.
The counter-affidavit in' this case having been dismissed by the court, and not having been reinstated, under the rulings in these cases, the judge below erred in dismissing the plaintiff’s warrant. We presume that the attention of the learned judge, who tried this case in the court below, was not called to the decisions above cited.
Judgment reversed.