127 Ga. 390 | Ga. | 1907
This record presents the single question of the jurisdiction of a county court to try the issue made by the tenant’s counter-affidavit to a warrant issued by a notary public and ex-officio justice of the peace, on the affidavit of the landlord to eject the-tenant as holding over beyond his term. See Civil Code, §§.4813, 4814, 4815. It is contended that the county court has no jurisdiction to try this issue, because the Civil Code, § 4816, requires that when the counter-affidavit and bond of the tenant are made and delivered to the executing officer, he shall return the proceedings to the next superior court of the county where the land lies, and the fact in issue shall there be tried by a special jury, as in ease of appeal. If there were no other legislation on the subject, this contention would be sound. But the Civil Code, § 4208, expressly confers on the county judge jurisdiction “to hear and determine all applications for the eviction Of intruders, tenants holding over,” etc. It is true that § 4816 declares that the executing officer shall return the proceedings to the superior court for trial, and no provision is made by statute for the return of such proceedings to the county court. However, jurisdiction is by statute conferred on the county court to hear and determine the issue, and if the proceedings are actually returned to the county court, they are triable in that court. The county judge may be without power to compel' the executing officer to return the proceedings to his court, but this deficiency does not deprive him of the jurisdiction to try the case given him by the code section, should the papers be filed in his court.
Where an affidavit is made to eject an intruder, and a counter-affidavit is placed in the hands of the executing officer, the statute declares that he “-shall return both affidavits,' and deposit them in the office of the clerk of the superior court of the county in which the land lies, upon which an issue shall be made up and tried by a jury, according to the laws of this State.” Civil Code, §.4810. There is no provision made for the return of the proceedings in such a case to the county court. Yet it has been held that the county court has jurisdiction to try and determine applications for the eviction of intruders. Durden v. Clack, 94 Ga. 278; Music v. Barber, 99 Ga. 800. The analogy between the provisions of the code for the return for trial and the jurisdiction of the courts, be
Judgment reversed.