Bahde v. Wright
| Decision Date | 28 January 1948 |
| Docket Number | 31843. |
| Citation | 46 S.E.2d 264,76 Ga.App. 462 |
| Parties | BAHDE v. WRIGHT. |
| Court | Georgia Court of Appeals |
Rehearing Denied Feb. 14, 1948.
Syllabus by the Court.
1. The Clerk of the Civil Court of Fulton County is authorized under the provisions of the Act approved August 20, 1913 (Ga.L.1913, page 145), to administer the oath for the issuance of a dispossessory warrant.
2. A dispossessory warrant is a summary statutory proceeding by a landlord to obtain possession of premises from his tenant and the only money judgment which can be obtained by the landlord in such a proceeding is the statutory penalty for double rent, which is granted as an incident to the writ placing him in possession of the premises.
(a) Where the certificate of eviction issued by the Office of Price Administration authorized the landlord to proceed against the tenant for eviction in accordance with the requirements of the local law, a judgment in a dispossessory warrant proceeding against the tenant for double rent was proper, where the verdict was for the landlord for the premises.
3. The verdict and judgment were authorized by the evidence, no error of law appears, and the Appellate Division of the Civil Court of Fulton County did not err in affirming the judgment overruling the defendant's motion for a new trial.
This was a dispossessory warrant proceeding by L. Ralph Wright Jr., as landlord, against C. A. Bahde, as tenant. It was alleged in the affidavit on which the warrant issued that said tenant was in possession of and was holding the described premises over and beyond the term for which the same were rented to him; that the landlord desired and had demanded possession of the premises, which had been refused by the tenant; that the landlord had complied with the rent regulations promulgated by the Office of Price Administration in that he had given the tenant the proper notice, with copy to the Rent Control Office, and that he had complied with the State law by giving the 60 days notice to vacate, Code, § 61-105. The defendant filed his counter affidavit, denying specifically and in detail all of the plaintiff's affidavit, except that he was in possession of the property, and gave the required bond.
The case proceeded to trial and the defendant made an oral motion to dismiss the dispossessory warrant on the grounds: (a) That the affidavit and oath thereto was administered by the Clerk of the Civil Court of Fulton County, there being no provision in law whereby said Clerk was authorized to administer said oath; (b) that the Statute, Code, § 61-301, only gives jurisdiction to the judge of the Superior Court, or a justice of the peace to administer said oath as prescribed by law. The motion was overruled by the Court and the defendant excepted pendente lite. The jury returned a verdict for the plaintiff against the defendant. The defendant made an oral motion for a new trial, which was overruled, and the case was appealed to the Appellate Division of the Civil Court of Fulton County. The judgment of the trial court was affirmed by the appellate division, and the defendant excepted to that judgment.
Kobak Levy & Buffington, of Atlanta, for plaintiff in error.
Hewlett & Dennis, T. F. Bowden, and Charles S. Barton, all of Atlanta, for defendant in error.
SUTTON, Chief Judge (after stating the foregoing facts).
1. We will first consider the assignment of error contained in the exceptions pendente lite filed by the plaintiff in error: Did the trial judge err in overruling the defendant's motion to dismiss the dispossessory warrant on the ground that the oath of the affidavit had been administered by the Clerk of the Civil Court of Fulton County, where the statute requires that the oath be taken before a judge of the superior court or a justice of the peace? This question has been decided adversely to the contention of the plaintiff in error by the Supreme Court in the case of Wilson v. Healey Real Estate...
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...of the disputed premises and to return possession of the premises to the landlord. See OCGA § 44-7-50 et seq.; Bahde v. Wright, 76 Ga.App. 462, 46 S.E.2d 264 (1948). Accordingly, appellee CLI, the purported tenant in actual possession, would certainly appear to be a necessary party to the d......
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