Harrell v. Logue Bros.

• Decision Date: 28 March 1908
• Citation: Harrell v. Logue Bros., 130 Ga. 446, 60 S. E. 1042 (Ga. 1908)
• Parties: HARRELL v. LOGUE BROS.
• Court: Georgia Supreme Court

60 S.E. 1042

130 Ga. 446

HARRELL v. LOGUE BROS.

Supreme Court of Georgia

March 28, 1908

Syllabus by the Court.

Where a distress warrant, counter affidavit, and replevy bond are by the levying officer lodged for trial in a court without jurisdiction, it is in the discretion of the court to which the papers have been returned to grant an application to withdraw the papers, that they may be sent to the proper court for trial.

[Ed Note.-For cases in point, see Cent. Dig. vol. 13, Courts, § 1301.]

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Action by Logue Bros. against W. E. T. Harrell. From an order transmitting the papers to another court, defendant brings error. Affirmed.

Isaac S. Peebles, Jr., for plaintiff in error.

Pierce Bros., for defendants in error.

EVANS P.J.

A general distress warrant was issued by a justice of the peace of Richmond county in favor of a landlord against his tenant. The affidavit on which the warrant was based alleged that the tenant was a resident of Burke county, and was indebted to the landlord in the sum of $143.75 for rent of a farm located in Burke county, which sum was due, and "that part of the products of said rented premises are in said county of Richmond, said state, in the warehouse of Ramsey & Legwin." The tenant filed with the levying officer an affidavit, denying that the sum distrained for was due, and a replevy bond; and the warrant, counter affidavit, and bond were returned to the superior court of Richmond county. On the call of the case for trial the tenant moved to quash and set aside the distress warrant, because the affidavit did not allege that he had property in Richmond county, and for this reason a justice of the peace of Richmond county had no authority to issue the process, and because, on the face of the papers, it appeared that he was a resident of Burke county, and that the superior court of Richmond county had no jurisdiction to try the case. The landlord made a counter motion to withdraw the papers, for transmission to the superior court of Burke county, which motion the court granted. Exception is taken to this order.

A distress warrant may be issued by any justice of the peace within the county where the tenant may reside or where his property may be found. Civ. Code 1895, § 4818. The allegation in the affidavit for distress warrant that a portion of the product of the rented premises was in Richmond county, in the warehouse of certain factors, may not be the exact equivalent of an allegation that the tenant has property...