42 S.E.2d 446 | Ga. | 1947
Where the 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.
"1. Where an affidavit upon which a dispossessory warrant is founded alleges two grounds as a basis for the issuing of such warrant in the following language, `That said tenant fails to pay the rent now due on said house and premises, or and that the said tenant is holding said house and premises over and beyond the term for which the same were rented to him,' both grounds being good in substance and connected by the expression `or and,' should such affidavit in the absence of a special demurrer be treated as alleging that the grounds are stated only in the disjunctive where the affidavit is attacked by an oral motion to dismiss on the ground that there was no positive averment on which ground the affiant relied to dispossess the tenant? See, in this connection, Henderson v. Nolting First Mortgage Corp.,
"2. If the answer to the above question is in the affirmative, where a motion to dismiss, not in writing, was made, would the disjunctive averments of the affidavit render the affidavit subject to the rule of construction that, though subject to special demurrer on the ground of duplicity, it is not subject to a verbal motion to dismiss because there was no positive averment on what ground the affiant relied to dispossess the tenant? See, in this connection, *108 Doyal v. Russell,
"3. If the answer to question one is in the affirmative, would the affidavit, in the absence of a special demurrer, be a legal basis for the dispossessory warrant, where both alternatives are good in substance and the verbal motion to dismiss is made upon the ground that there was no positive averment upon what ground the plaintiff relied to dispossess the tenant and where the affidavit contains the other elements upon which to base the dispossessory warrant? See, in this connection, Saliba v.Saliba,
We move on to a consideration of the statutory law authorizing dispossessory proceedings found in Chapter 61-3 of the Code. It is well to keep in mind that the summary proceeding there provided is the only lawful manner by which a tenant may be summarily and forcibly evicted. By that procedure a tenant is compelled to surrender possession of the land, and unless arrested by a counter affidavit and bond as provided in the Code, § 61-303, the dispossessory warrant is a final process. The basis or foundation in law for the issuance of the warrant is specified in § 61-301. It is there provided that, when the tenant shall hold over and beyond the term of his lease or shall fail to pay the rent when due, or when the tenant holds possession at will or sufferance and refuses to surrender possession on demand, the owner may make oath before the proper officer of such fact or facts. The next section provides that, when such affidavit has been made, such officer shall issue a dispossessory warrant. It is obvious that a landlord may not claim any right to maintain such dispossessory proceeding unless and until he has laid the indispensable foundation, which is an affidavit positively stating that one or more of the specified grounds is true. Once the warrant is issued, however, the sheriff or other officer is required to remove the tenant with his property away from the premises and deliver the same to the owner or his agent. The tenant may be heard only by complying with the requirements of the Code, § 61-303, wherein it is provided that he must file a counter affidavit denying the existence of the grounds stated in the affidavit upon which the warrant issued, and give bond payable to the landlord for the payment of such sum with costs as may be recovered against him on the trial. We have been unable to find a decision of this court dealing with the exact question here involved, but there seems to be no reason why the requirements here as to a positive and unequivocal averment of the existence of lawful grounds for the warrant would be less than the requirements in an attachment case. Brafman Son v.Asher,
Apparently, the Court of Appeals, while recognizing that the affidavit here referred to is defective in that the grounds are not positively alleged, is bothered about the question whether this defect must be attacked by special demurrer or may be reached by a motion to strike. In Brafman Son v. Asher, supra, 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,
Although the defect in the affidavit here was amendable (McDonald v. Kimball Co.,
Question answered. All the Justices concur.