15 S.E.2d 214 | Ga. | 1941
1. Concerning defense against a distress warrant, the Code, § 61-404, provides: "The party distrained may in all cases replevy the property so distrained, by making oath that the sum of money or some part thereof distrained for is not due, and giving security for the eventual condemnation-money; and in such case the levying officer shall return the same to the court having cognizance thereof, which shall be tried by a jury as provided for in the trial of claims: Provided, that when the levying officer shall retain possession of the property of the tenant levied on, it shall not be necessary to give the bond for the eventual condemnation-money."
(a) The proviso contained in the last clause of the foregoing section was added by statute in 1894. Considering the remedial character of this statute and the parties to be affected thereby, the words "when the levying officer shall retain possession" should be construed as meaning "when the tenant shall not retain possession."
(b) Accordingly, where a tenant tenders to a levying officer a proper counter-affidavit and does not desire to retain possession of the property, it is unnecessary for him to give an eventual condemnation-money bond.
2. Although the counter-affidavit was tendered more than four years after issuance of the distress warrant, and with reference to the claimed undebtedness for rent stated only that "the sum distrained for under said warrant was not due at the time of issuing said warrant," it was yet sufficient to state an issuable defense as between the tenant and the landlord; and this being true, a sheriff or levying officer would not be authorized to reject it because of possible formal defects which might render it subject to special demurrer by the landlord. It appearing from the petition against the sheriff, to compel acceptance, that the distress warrant was still executory, the right to file a counter-affidavit was not barred by lapse of time. *286
3. A counter-affidavit in the form quoted above would not be fatally defective as stating no issuable defense, even though the affidavit for distress warrant may have stated that the tenant was seeking to remove his goods from the premises, and not that the rent was due and unpaid.
4. It appearing from the petition that the distress warrant was issued against one person only as tenant, and that a levy was made thereunder, in the absence of anything to the contrary it will be assumed that the levying officer duly performed his official duty by levying on the property of such person as the defendant in the distress warrant, and not on the property of a third person. The petition for the writ of mandamus was not defective for the reason that it did not affirmatively allege that the property of the tenant, now plaintiff, had been levied on under such distress warrant.
5. The petition was not subject to dismissal under the rule that in order for a party to enforce a private right by mandamus he must show pecuniary loss which can not be compensated in damages; the allegations of fact being sufficient to bring the case in conformity to this rule.
6. Nor was the petition for the writ fatally defective because the landlord was not made a party defendant.
7. The petition stated a cause of action for the writ of mandamus to compel the sheriff to accept the counter-affidavit as tendered, and the court erred in dismissing the action on general demurrer.
The alleged copy of the counter-affidavit attached to the petition as an exhibit (omitting statement of the case and other formal parts) was as follows: "Personally appeared H. H. Hardin, who being July sworn deposes and says that he is president of Speed Oil Company, and that the sum distrained for under the above stated warrant was not due at the time of issuing said warrant. Dependent says further that the property levied upon is not in possession of the Speed Oil Company, but, in so far as it is concerned, [is] in the hands of the sheriff of Fulton County, Georgia, who has accepted a solvent forthcoming bond for its delivery at the proper time from another than said Speed Oil Company." The affidavit was signed and sworn to by the affiant before a notary public, November 13, 1940. No copy of the distress warrant or of the affidavit on which it was based was attached to the petition, nor were *288 their contents stated in substance, except as to names of the parties, amount, and dates. 1. Concerning defense against a distress warrant, the Code, § 61-404, provides as follows: "The party distrained may in all cases replevy the property so distrained, by making oath that the sum or some part thereof distrained for is not due, and giving security for the eventual condemnation-money; and in such case the levying officer shall return the same to the court having cognizance thereof, which shall be tried by a jury as provided for in the trial of claims: Provided, that when the levying officer shall retain possession of the property of the tenant levied on, it shall not be necessary to give the bond for the eventual condemnation-money." It is contended for the plaintiff, Speed Oil Company, that although the counter-affidavit tendered by it to the sheriff was not accompanied by an eventual condemnation-money bond, it was unnecessary for it to give this or any kind of bond where it did not retain or receive the property levied on, but on the contrary the property, before tender of the counter-affidavit, had been delivered by the levying officer to a third person as claimant, on approved claim and forthcoming bonds, in accordance with the law applicable in claim cases. It is insisted that in such case the property, so far as petitioner is concerned, has been and is in possession of the sheriff, or, in other words, has been retained by the sheriff within the purview of the law "that when the levying officer shall retain possession of the property of the tenant levied on, it shall not be necessary to give the bond for the eventual condemnation-money" (§ 61-404, supra). This is the principal question argued by counsel for the plaintiff; and while counsel for the defendant take a contrary position with reference to this point, they insist that it is not controlling in the case, and urge additional reasons why the petition for mandamus was properly dismissed on demurrer. Counsel for the plaintiff reply that the petition was good in every respect as against the general demurrer.
The proviso contained in the last clause of section 61-404, supra, was added by statute in 1894. Ga. L. 1894, p. 52. It would be incorrect to say that the levying officer himself retains possession *289
of the property after delivering it to a third person as claimant under proper claim and forthcoming bonds, as distinguished from a forthcoming bond given by a defendant in fi. fa. (Code, §§ 39-804, 39-805, 39-302, 39-303; Mitchell v. Hay,
While the language of the amendatory act is that it shall not be necessary for the tenant to give an eventual condemnation-money bond "when the levying officer shall retain possession of the property of the tenant levied on," yet in view of the remedial purpose of this law and its evident intention to affect only the landlord and the tenant as parties at interest, and the levying officer in his official capacity, we are of the opinion that its primary and controlling purpose was to relieve the tenant of the necessity of giving bond for the eventual condemnation-money when he does not desire to retain possession after levy. In this view, the words "when the levying officer shall retain possession" should be construed as meaning "when the tenant does not retain possession." On construction generally, see Code, § 102-102 (9); Board of Tax Assessors of DecaturCounty v. Catledge,
2. It appears from the petition that the distress warrant was issued in September, 1936, returnable to the November term of the superior court, and that the counter-affidavit was executed and tendered in November, 1940, more than four years later. With reference to the claimed indebtedness for rent, the affiant in such counter-affidavit deposed only "that the sum distrained for under the above-stated warrant was not due at the time of issuing said warrant." This averment was in substantially the same form as that considered in Feagin v. McCowen,
3. The Code, § 61-401, declares that the landlord may distrain for rent "as soon as the same is due, or before due if the tenant is seeking to remove his goods from the premises." Counsel for the sheriff contend that in view of this section the plaintiff would not be entitled to the writ of mandamus on the mere averment that the sum distrained for "was not due at the time of issuing said warrant," for the reason that the landlord may have distrained upon the ground that the tenant, now the plaintiff, was seeking to remove its property from the premises. We can not sustain this contention. Construing the provision last quoted in connection with § 61-404, providing the right to file a counter-affidavit, we think the former section intended that the rent should be treated as due if the tenant is seeking to remove his goods from the premises, and thus that the counter-affidavit in this case would be good as against a general demurrer, no matter upon which of the two prescribed grounds the affidavit for distress warrant may have been predicated. In Sturgis v.Frost, supra, it was questioned whether the tenant could defend at all by counter-affidavit where a warrant, issued before the rent was due, was on the ground that the tenant was seeking to remove his goods from the premises. It was apparently unnecessary to decide the question in that case. It is necessary here, and we decide it in the affirmative.
4. The proviso as stated in § 61-404 refers to the retaining of *292
the possession "of the property of the tenant levied on," and it is contended that the petition did not state a cause of action, for the reason that it nowhere alleges that any property of the tenant was levied on. The Code, § 39-103, declares that the officer making the levy shall describe the property levied on, and "the amount of the interest of defendant therein." The petition does allege that a levy was made under the distress warrant. It appears that only one person was named as a defendant therein. While the rule is different as to attachments (Tuells
v. Torras,
5. It is further contended that the action was properly dismissed under the rule that in order for a party to enforce a private right by mandamus he must show pecuniary loss for which he can not be compensated in damages. Atlantic Ice CoalCorporation v. Decatur,
6. The petition for mandamus was not subject to dismissal on the ground that the landlord was not made a party. In the present petition the plaintiff is not asking an adjudication against any *293
right of the landlord. It is merely seeking entry into court, in order that it may subsequently litigate with the landlord in a proper proceeding for that purpose. The case falls within the principle ruled in Gullatt v. Slaton,
7. "All official duties should be faithfully performed; and whenever, from any cause, a defect of legal justice would ensue from a failure or improper performance, the writ of mandamus may issue to compel a due performance, if there shall be no other specific legal remedy for the legal rights." Code, § 64-101. "To entitle one to the writ of mandamus it must appear that he has a clear legal right to have performed the particular act which he seeks to have enforced." City of Atlanta v. Blackman HealthResort Inc.,
Judgment reversed. All the Justices concur.