Smith v. Green

34 Ga. 178 | Ga. | 1865

Lyon, J.

We concur with the judgment of the Court below.

The original proceeding was by distress warrant, sued out under the statute for the recovery of the amount of rent claimed by the plaintiff, against the defendant Green. Up'on that proceeding no garnishment is authorized by the statute, nor is it, nor can it be, the basis of a collateral or other proceeding, in the Inferior or Superior Court, to obtain general judgment for the rent debt; but it is a final process of itself, under which the property of the tenant may be levied and sold to satisfaction, “ as in cases of other executions,” unless the tenant shall make oath that “ the sum, or some part thereof distrained for' is not due;” then, and in that case, it is the duty of the levying officer to return the same to the Court having cognizance of the same — in this case, either the Superior or Inferior Court; hut until such affidavit is made, neither Court has jurisdiction or cognizance of it; and then, only for the trial by jury of the issue between the parties made by the two affidavits as to the amount of rent actually due. OobVs Dig. 900-1. The Inferior Court, therefore, as no such affidavit had been filed, did not have jurisdiction to give judgment against the defendant, or to garnishee Postell; and the whole proceedings of the said Inferior Court in these respects, were absolutely null and void, and should have been, on motion, so declared.