Lovell v. Federal Land Bank of Columbia, 178 Ga. 578

Lovell v. Federal Land Bank of Columbia

178 Ga. 578 | Ga. | 1934

Lead Opinion

Atkinson, J.

Proceedings were instituted under tlie Civil Code, § 5385, to evict an alleged tenant for non-payment of rent. The defendant did not make a counter-affidavit under § 5387, but brought suit to enjoin execution of the warrant for removal, and interference with her possession, on the grounds that the property was her individual estate, and that there was no relation of landlord and tenant between the parties. Inability to give the statutory bond required by § 5387 was alleged. The answer put the plaintiff on proof of this allegation. At interlocutory hearing there was evidence tending to establish all other allegations *579of the petition, but no evidence as to inability of the plaintiff to give a statutory bond; Held, that the plaintiff had an adequate remedy at law by counter-affidavit under the Civil Code, § 5387. The judge did not err in refusing an injunction. Compare Napier v. Varner, 149 Ga. 586 (2) (101 S. E. 580), and eit., in which the above principle was applied in cases where there was evidence of inability to give bond.

No. 9609. February 24, 1934. Borough, Hope & Fox, for plaintiff. W. V. Lance, for defendant.

Judgment affirmed.

All the Justices concur, except

Dissenting Opinion

Russell, C. J.,

who dissents upon the rulings in DeLacy v. Hurst, 83 Ga. 223 (9 S. E. 1052), Conley v. Buck, 100 Ga. 187 (28 S. E. 97), Patterson v. Barron, 177 Ga. 159 (169 S. E. 899), and cit., and Pope v. Thompson, 157 Ga. 891 (122 S. E. 604).