Ralls v. E. R. Taylor Auto Company
42 S.E.2d 656
| Ga. Ct. App. | 1947

1. This Court certified three questions to the Supreme Court. Because the answer to the first question was controlling, the remaining questions were not answered.

2. The headnote of the decision of the Supreme Court reads: "Where an affidavit under the Code, § 61-301, alleging one ground for dispossessing a tenant, is followed by the words `or and' and then another ground, it is not a positive allegation of either ground, and is subject to an oral motion to dismiss." *Page 137

3. In the body of the opinion of the Supreme Court, written by Presiding Justice Duckworth, it is said: "In Brafman Son v. Asher, supra, [78 Ga. 32] the motion to strike was held to be a proper attack in the attachment case. It would seem, therefore, that by analogy a motion to strike would properly reach the defect in a dispossessory proceeding. While in Doyal v. Russell, 183 Ga. 518, 534 (189 S.E. 32), it was stated that, `if both alternatives are good in substance, the petition might be subject to special demurrer for duplicity, but would not be subject to general demurrer,' neither of the alternatives in the present case is good in substance because a vital element is positiveness. Therefore, whether tested by the general rule applicable to pleadings generally, as just quoted from the decision of this court, or by the rule applicable in summary proceedings as in attachment, the defect here may be reached by a motion, since neither of the alternatives as alleged is good in substance."

4. For the full decision of the Supreme Court and the material facts in the case, see Ralls v. E. R. Taylor Auto Co., 202 Ga. ___ (42 S.E.2d 446) decided April 15, 1947.

5. Under the ruling of the Supreme Court, the trial judge erred in overruling an oral motion to dismiss the proceedings on the ground that such affidavit was made in the disjunctive and did not positively aver what ground or grounds were relied upon to dispossess the tenant.

Judgment reversed. Gardner and Townsend, JJ.,concur.

DECIDED MAY 2, 1947.