116 Ga. 626 | Ga. | 1902
The plaintiffs in error sued out a warrant against Burney to dispossess him of certain premises as a tenant holding over and beyond his term. Burney filed the affidavit required by law, and the sheriff returned the papers to the clerk of the superior court, who placed the case on the docket of the superior court. This return to the clerk was made about February 14, 1902. The next term of the superior court after the return of the warrant to the clerk did not commence until the July following. The next term of the city court of Floyd county was the March term, 1-902. At the request of counsel for the plaintiffs, the clerk canceled the entry of the case on the dockets of the superior court, and erased the entries on the papers showing a return to the July term of the superior court, and changed them so as to show a return to the March term of the city court. He also entered the case on the dockets of the city court. The same person was clerk of the superior court and clerk of the city court. When the case was called in the city court, the defendant moved to dismiss it on the ground that the court was without jurisdiction, as the case had heen docketed in the superior court, which court alone had jurisdiction of the case. The above facts appearing, the court struck the case from its dockets. The plaintiffs excepted.
The Civil Code, §4816, declares that, after the counter affidavit has been made in a case like this, the sheriff shall return the proceedings to the next term of the superior court. The act creating the city court of Floyd county declares that the officer shall in such a ease return the proceedings to that court unless the plaintiff' otherwise directs. Acts 1882 — 3, p. 536. Thus it appears that there are two courts in the county of Floyd having jurisdiction of such cases as the present. The code makes it the duty of the sheriff to return the proceedings to the superior court. The act creating the city court makes the proceedings returnable to that court unless the plaintiff directs otherwise. The code is mandatory; the act creating the city court is not so strong in expression as to the court to which the proceedings should he returned. The sheriff chose to follow the code and returned the proceedings to the clerk of the superior court, and that clerk placed the case on the docket of the superior court, as he had the right to
Judgment affirmed.