129 Ga. 788 | Ga. | 1907
Iff. Ivarwisch made affidavit, alleging that he in good faith claimed the right of possession of a certain described strip of land; and that it was in the hands of Mrs. Mary Yancey, who did not in good faith claim a right to the possession of such property, and yet refused to abandon the same. This affidavit was placed in the hands of the sheriff of Fulton county, for the purpose of having Mrs. Yancey ejected as an intruder, under the Civil Code, §4808. The defendant delivered to the sheriff a counter-affidavit stating that she did in good faith claim a legal right to the possession of the land described in the affidavit of Karwisch; and also that the case involved the same issue that had previously been tried in the superior court, and determined in her favor. The papers were returned to the superior court for trial. When the case was called the defendant did not appear, and the presiding judge dismissed the counter-affidavit on" the ground that she failed to appear to prosecute it. After this the court permitted 'the plaintiff to proceed with the trial, and a verdict was rendered in favor of the plaintiff, and a judgment was entered that he should recover of the defendant possession of the premises described. The defendant excepted and assigned error on the dismissal of her counter-affidavit; and also because the court, after such dismissal, allowed the plaintiff to proceed with the trial and to obtain a verdict and judgment against her.
Judgment reversed.