147 Ga. App. 636 | Ga. Ct. App. | 1978
1. (a) The affidavit required by Code § 61-301 for the initiation of dispossessory warrant proceedings against tenants holding over, which under that Code section is to be made "before the judge of the superior court or any justice of the peace,” includes such other judicial officers as may be authorized by law. Young v. Cowles, 128 Ga. App. 770 (197 SE2d 864) (1973). This includes a judge of the State Court of Gwinnett County. Code § 24-2106a. The affidavit was not subject to dismissal because made before a judge of that court, which has concurrent jurisdiction in such matters with the superior courts of this state.
(b) Nor is the proceeding void for lack of service. The officer serving the summons testified that he served both defendants (a father and son doing business as a named Amoco station); that both were working on a car at the time, their hands were greasy, and they instructed him to lay their respective summonses down in an area adjacent to that in which they were working.
(c) The written summons appearing in this record shows that the defendants are informed (a) that each has 7 days from the date of service to answer and that "the last date on which a default may be opened is (14) days from the date of service.” Immediately below is a notice to the defendants that they were served on April 6,1978, and the answer must be filed on April 13, 1978. This is a substantial compliance with Code Ann. § 61-302 (b) and is sufficient.
The motion to dismiss on the above grounds was properly denied.
In view of the fact that the notice, at least, remains contested, we need not pass on the question of whether the alleged oral lease was properly proved, or whether the relationship between these parties was that of a tenancy at will. The grant of summary judgment was error.
3. A motion has been made in this court to deny the appeal on the ground that appellants have not paid the required rent into the registry of the court, which procedure by the appellant is a condition precedent to possession pending appeal. Code Ann. § 61-306. This court, however, is a court for the correction of errors of law and is not empowered to decide factual issues. The motion
Judgment reversed.