Griffin v. Griffin

• Decision Date: 12 December 1902
• Citation: 42 S.E. 1005,116 Ga. 754
• Parties: GRIFFIN v. GRIFFIN.
• Court: Georgia Supreme Court

42 S.E. 1005

116 Ga. 754

GRIFFIN v. GRIFFIN.

Supreme Court of Georgia

December 12, 1902

Syllabus by the Court.

1. A verdict for the plaintiff in a proceeding founded upon Civ Code, § 4823 et seq., providing a civil remedy for forcible entry and detainer, is not warranted when the evidence shows that the entry was made into an occupied dwelling house during the temporary absence of the person entitled to the possession.

Error from superior court, Laurens county; Jno. C. Hart, Judge.

Action by F. D. Griffin against George Griffin. Judgment for plaintiff, and defendant brings error. Reversed.

S. B Baker and Akerman & Akerman, for plaintiff in error.

H. P Howard and T. L. Griner, for defendant in error.

COBB J.

Fred D Griffin instituted in the justice's court an action of forcible entry and detainer against George Griffin under the provisions of Civ. Code, § 4823 et seq. The case was tried before a jury, and a general verdict for the plaintiff was rendered. The defendant filed a petition praying for a writ of certiorari, and to the refusal of the judge to sanction the petition he excepted. The sole question made in the petition is whether the verdict in the justice's court was warranted by the evidence, which, as set out in the petition, was, in substance, as follows: The plaintiff was in possession of the house alleged to have been entered by the defendant, using the same as a dwelling house. He went away temporarily, and locked up the house, leaving his bed, bedding, and other articles of furniture in the house. The back door of the house was fastened with a padlock by attaching a chain to a staple in the door facing; the chain being attached to the door by a little wire. During the plaintiff's absence the defendant broke open the back door of the house with an axe, entered, and took possession, and, when plaintiff returned, refused to surrender possession, claiming that he entered rightfully, and telling plaintiff that he would have to go to court to recover possession. Under the averments of the petition the jury were warranted in finding the facts to be as above stated, though, according to the defendant's testimony, he used no other force in making the entry into the house than to twist the little wire which attached the chain to the door. The only facts which the jury were authorized to inquire into were the "possession and the force." The merits of the title were not involved. Civ. Code, § 4826. It would seem that in a proceeding of this character, where the affidavit alleges both a forcible entry and a forcible detainer, it is necessary to prove both a forcible entry and a forcible detainer. See, in this connection. Lewis v. State, 99 Ga. 692, 26 S.E. 496, 59 Am.St.Rep. 255. But, without reference to this point, we are of opinion that under the facts alleged in the petition for certiorari a verdict in favor of the plaintiff was not warranted, and that the judge of the superior court erred in refusing to sanction the petition. In Lewis v. State, 99 Ga. 692, 26 S.E. 496, 59 Am.St.Rep. 255, it was held that "breaking and entering an unoccupied house in the absence of the person who had previously been in possession and control thereof, and who still claimed the right to the possession, is not indictable." In a carefully considered opinion, wherein he refers to both English and American authorities, Mr. Justice Lumpkin reaches the conclusion that the rule stated in the headnote, and which is quoted above, was of force under the English law, notwithstanding a statement to the contrary in some of the authorities. The judgment was reversed in that case, because the...