143 Ga. 402 | Ga. | 1915
1. Under the statutory proceeding to evict a tenant holding over and beyond his term of rental (Civil Code (1910), §§ 5385 et seq.), the tenant may, “by declaring on oath that his lease or term of rent has not expired, and that he is not holding possession of the premises over and beyond his term,” and at the same time tendering “a bond with good security, payable to the landlord, for the payment of such sum with costs as may be recovered against him on the trial of the case,” arrest the proceedings and prevent the removal of himself and goods from the rented premises. § 5387.
2. When the counter-affidavit is made and bond given as set forth in the foregoing headnote, it then becomes a proceeding on the part of the landlordL to recover the premises and the statutory penalty of double the value of the rent that the premises are shown to be worth, or double the amount of rent agreed upon, according to the nature of the tenancy; and the issue thus raised is to be submitted to a special jury of the superior court of the county where the land lies, as in eases of appeal. § 5388; Weaver v. Roberson, 134 Ga. 149 (67 S. E. 662). And if the jury to whom the case is submitted find against the tenant, the landlord shall have, in addition to a writ of possession, judgment against the tenant and the sureties on his bond for the amount of the penalty recovered. § 5389; Latham v. Perryman, 77 Ga. 579; Bennett v. Farkas, 126 Ga. 228 (54 S. E. 942).
3. In the present case the plaintiff, on the 9th day of January, 1913, sued out a dispossessory warrant, returnable to the July term of the superior court of Floyd county, to evict the defendant from described rented premises, as a tenant holding over and beyond his term. The following entry of service appears on the warrant: “I have this day read the within paper to D. F. Blackwelder in person. Jany. 10th, 1913. G-. W. Smith, Deputy Sheriff.” The warrant was filed in the clerk’s office on January 18; and on the same day the defendant madg and filed with the
4. The court erred in holding that the withdrawal by the defendant of his counter-affidavit and bond dismissed the plaintiff’s dispossessory proceedings; but should have submitted to the jury, to the extent of the recovery of the statutory penalty, the issue thus raised.
Judgment reversed.