41 Ga. 681 | Ga. | 1871
I. The order of the Court, dismissing the warrant and restoring the party to possession, under the facts in this case, constitutes the ground of error presented by the record.
Where proceedings were instituted under the 4000th section of the Code, and no counter affidavit was tendered, in terms of law, to arrest the execution of the warrant at the time, the tender of such affidavit twenty days subsequently thereto was not such a proceeding as could be returned by the sheriff or filed in Court. The warrant had accomplished its office when the party was turned out of possession, and the failure to file the proper affidavit so as to retain the possession under the statute, ended the case; there was nothing to return to the Superior Court, nothing to traverse before the Court. If the defendant had made the counter affidavit, and remained in possession, then the proceedings were, by operation of law, transferred to the jurisdiction of the Superior Court, and the motion to dismiss the warrant for any defect, properly cognizable by the Court, or on an issue formed to have been submitted to the jury, would be in order. But the filing of such counter affidavit under the Code, twenty days after the warrant had been executed by the sheriff, was not sufficient in law to have invoked the jurisdiction of the Court, and there was nothing before the Court, based on such proceeding, that authorized the order of restitution of possession.
Where by fraud, imposition or illegal means, the party may have obtained an inequitable advantage, in obtaining possession of lands under the 4000th section of the Code, and such fact appears by proper proceedings before the Court, we are of opinion, that the failure to file the counter affidavit at the time, may still be within the remedial processes of the Court, as where the absence of the party is shown, or the warrant is executed by the removal of an agent or tenant, or where deceitful and fraudulent practices are used.
But under the facts in this case, where a counter affidavit, in terms of the Code, was filed twenty days after the warrant had been fairly executed by the sheriff, we are of opinion *that the Judge had nothing before him upon which to predicate his order in the premises.
3. The original process in this case was void, and the action of the sheriff gives no legal protection to the party in possession under it. But the remedy, under the facts, did not lie in the summary order of restitution granted by the Judge below, and we, therefore, reverse the judgment.
