*1 Rozetta, Alexander v. condemnation. Compare was Since defendant-condemnor obliged compensate plaintiff property not for which had interest, property granted he no summary judgment. defendant-condemnor’s motion for Deen, J., J., Judgment Carley, C. affirmed. concur. May September 30, 14, 1979. Submitted Decided Loeb C. Ketzky, for appellant.
Quillian Baldwin, Richter, Horace F. appellees.
58117. WHITE v. JOHNSON. Judge.
Carley, Appellant, landlord appellee, the issuance sought of a distress warrant pursuant to Ga. L. p. 61-401 et seq.). Pursuant to Code Ann. 61-402, appellant made an affidavit in the State Court of DeKalb County utilizing the form provided by that court stating appellee was indebted to in a appellant specified sum "as rent.” The jurat, printed form, on said was as follows: me, "Sworn to and subscribed before - -, 19—. CLERK, STATE COURT OF DEKALB COUNTY.” portion This form completed with the date and with a admitted signature the parties to be that of a clerk deputy of the State Court of DeKalb County. affidavit, On the basis of this a printed on the same form affidavit with the summons — and containing the necessary statutory language —bore teste in the name of Mitchell, Honorable J. Oscar Chief court, of said and over a line containing printed words "CLERK, STATE COURT DEKALB OF COUNTY” was signed by the same clerk who executed jurat on the affidavit.
After service upon appellee as provided by law filed an answer denying all allegations contained the affidavit and summons and setting forth set forth in allegations as his second defense "[t]he Plaintiffs Summons and Affidavit for Distress Warrant a claim against upon fail to state this Defendant addition, relief In may granted.” appellee interposed alleging appellant "wrongfully, fraudulently, surreptitiously” ap- converted *2 pellant’s and certain and goods use benefit (chattels located at the leased premises. counterclaim further averred that the personalty so converted had a fair $5,000 market value and the reasonable hire thereof was per day. The counterclaim $10 demands were fair for the market value of the personalty, computed hire through the date of and punitive damages.
The case was heard before the court without a jury. The court entered a judgment of fact including findings In conclusions of law. reciting addition circumstances of the execution of the affidavit and the issuance of forth, the summons above set the court found that, based upon testimony defendant, of the certain personalty located at the leased premises had a value of $5,000 and a hire of per day. The court concluded as $6.67 a matter of law that the distress warrant and the summons "having been executed before the Clerk of the State Court of DeKalb County, and not Georgia, Judge of said Court inis violation of the Laws of this State authorizing the Distress Warrant and, for rent . . . therefore, fails to state a claim against the defendant upon which relief may be as a granted matter of law.” The court also concluded that the defendant was entitled to recover either the personalty $5,000 or the sum of plus hire at the rate of per day. The court further $6.67 determined the defendant was not entitled punitive damages. There were no other or conclusions. From the judgment in favor ruling of the distress warrant and a awarding money judgment counterclaim, on the appellant appeals.
1. Code Ann. 61-402 provides as follows: "Application for distress warrant. When rent is due or the tenant is seeking landlord, to remove goods, the his agent, in attorney fact or attorney at law may, upon statement of the oath, facts under apply for a distress warrant court, before the judge superior court, State courts, civil court or small claims or of the any justice within the where the tenant reside or peace county may where his be found.” property may 61-403
Code sets forth "[w]hen made, affidavit section 61-402 shall be provided court, of the State court or civil court before judge superior whom it made shall and issue a summons ...” grant was Upon its construction of the aforesaid statutory provisions, the trial court dismissed the distress warrant because the affidavit this case made proceeding before a clerk and the clerk deputy signed summons, in the name albeit of the Chief It court. is true that this court has held that "[T]he to issue authority dispossessory or distress warrants does not exist unless conferred expressly by statute.” Brown v. Assn., Cobb Federal Savings &c. Brown, In we held dispossessory
distress proceedings to be void ab initio because the deputy clerk of the Civil and Criminal Court of Cobb County, rather than thereof, issued judge *3 dispossessory warrant and a distress warrant. Cobb County
"[t]he
decision has no application to the case
at bar because the clerk and
clerks
of the State
Court
DeKalb County
of
have
granted
been
the 'power
to
all
perform
purely ministerial
which,
duties
under
the
State,
laws of this
are performable
a by
justice of
peace.’
Ga. L.
p. 3295.”
v. F. E.
Browning
Sons,
Fortenberry
101)
&
Even had the summons and affidavit been defective in case, this the trial court would not have been a claim to state for failure the same dismiss to
authorized
deficiency
alleged
can be granted.
relief
upon
nature of
in the
the affidavit
is
in the summons
in
process”
Code
described
"insufficiency of
of
defense
(b) (4).
raise this
Ann.
failed to
The appellee
§ 81A-112
and,
pleadings
defensive
in his
specifically
defense
(h).
§ 81A-112
Ann.
Code
therefore,
same was waived.
1) (1978).
(246 SE2d
Ellis, 146
App.
v.
Ga.
King
(b) (6)
motion to
§
that his CPA
contention
Appellee’s
can
which relief
upon
state a claim
failure to
dismiss for
decided
issue must be
raise the
sufficient
granted
v. Perret's
him
basis of Williamson
on the
adversely to
754) (1973).
687, 691
Farms, 128
App.
Ga.
the trial
as error
also enumerates
2. Appellant
on
in
of the
favor
grant
court’s
and,
support
in
appellee’s
have
should
the trial court
enumeration,
contends
because
the counterclaim
motion to strike
his
granted
allege
and did not
fraud
upon
was based
same
particularity
fraud with
constituting
circumstances
Practice Act
Civil
Georgia
9B
required
(b)).
is without
contention
Appellant’s
81A-109
McCollum,
349 It that, is true here —there is no generally, where —as evidence, must be transcript judgment affirmed because it said that cannot be the trial court’s are findings as "clearly erroneous” Code Ann. contemplated (a). Milam, 81A-152 33, Milam Ga. " (Ga. 1969, L. 645, statute p. '[t]he (a))) amended, 1970, §Ann. p. Ga. L. 81A-152 explicitly findings and requires "Where issue, findings, fails make or to on a material find taken, appeal an is the appellate court will normally vacate judgment remand action for appropriate Moore, to be findings made.” 5A Federal (2d (cases cited).’ 2718, 52.06[2], Practice Par. Ed. 154).” Spivey Mayson, App. 775 Corp. Sons, Bituminous Cas. v. J. B. Forrest & 132 Ga. 6) (1974). App. 714, 720 Since gravamen appellee’s counterclaim is the fraudulent conversion of personalty by appellant, we hold of fact and conclusions of law here are deficient fail they to resolve a "material issue.”
Accordingly, for the reasons set forth Division 1 of opinion, we reverse the trial court distress proceedings. case is remanded with direction that the trial court its vacate judgment, make appropriate findings of fact and conclusions of law all as to material issues and enter new judgment from which either party shall be free to another appeal. enter Tallent, 98) Graham v. (1976).
Judgment reversed and appeal remanded with Deen, J., direction. C. Shulman, J., concurs. concurs specially. July
Submitted Decided September 14, 1979. Jordan,
J. L. appellant. Hall, Jr., V. for appellee. William Judge, concurring specially. Shulman, I the result fully by Judge reached agree Carley *5 350 Fortenberry Browning F. E. I am bound feel that and 101). (2) (206 I App. SE2d Sons, 131 Ga.
& against again protest once to constrained am contrary provisions proliferation laws of local thereof. application general in modification or statutes Aliotta, Buick, Inc. v. to Critz addendum this writer’s See 56), therein citation App. and the 145 Ga. Furnishing Co., 235 Ga. v. Home Sellers Carley’s opinion in the 34), further bolsters case. instant CARE, INC. v. LOEB. HEALTH
58140. GEORGIA Judge. Presiding Quillian, (appellee), bankruptcy plaintiff The as trustee brought Associates, Inc., Hunt, Enloe, West, McLean and against corporation (appellant) the defendant action seeking architectural to recover under contract for the material services. The defendant’s answer denied allegations summary judgment complaint. plaintiff moved for The documentary affidavits and based on evidence. Also available for the court’s consideration was by discovery depositions information obtained two secretary-treasurer taken of the defendant’s president. hearing, judge a detailed
After a the trial entered finding describing order the basis of his conclusions and plus plaintiff $5,750 The for the in the amount of interest. appealed. defendant Held: summary judgment, plaintiff,
1. The as movant for any genuine establishing has the burden of issue ofmaterial fact and ofhis the absence right a matter to recover as Co., McLendon, of law. Stratton & Inc. v. Cameron-Brown 447). App. defendant, as the party opposing motion, to all favorable is entitled most inferences and the evidence is to construed strongly in DeKalb his favor. Schermerhorn Greater Plumbing Co., "[A]ll &c. including of the evidence motion, adduced on said