Lanier v. Kelly

• Decision Date: 05 October 1909
• Docket Number: (No. 1,941.)
• Court: Georgia Court of Appeals
• Parties: LANIER . v. KELLY.

65 S.E. 692

6 Ga.App. 738

LANIER .

v.KELLY.

(No. 1, 941.)

Court of Appeals of Georgia.

Oct. 5, 1909.

1. Landlord and Tenant (§ 311^*)—Dispos-sessory Warrant—Time of Execution.

A dispossessory warrant issued, but not executed before the next term of the superior court thereafter, does not become functus officio.

[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. | 311.*]

2. Landlord and Tenant (§ 311*)—Dispossessory Warrant—Time of Return.

After a dispossessory warrant is issued and exhibited to the tenant, and stayed by counter affidavit and bond, the proceedings must be returned to the next superior court thereafter.

[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 311.*]

3. Landlord and Tenant (§ 311*)—Dispossessory Warrant—Irregularity—Effect.

A landlord made an affidavit that his tenant was in arrears for rent, and a dispossessory warrant was issued thereon regular in every respect except that in one place in the body of the warrant the name of the tenant was inserted where it was apparent from the context that the name of the landlord was intended. Held, the defect was amendable, and the warrant was not void.

[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 311.*]

4. Landlord and Tenant (§ 297*)—Tenant at Will—Ejection—Notice.

A tenant at will who is in arrears with his rent, and who refuses on demand to surrender the premises, may be ejected by dispossessory warrant, and it is not necessary that 60 days' notice should be given him. The officer must exhibit the warrant to the tenant and give himthree days within which to move before proceeding forcibly to eject him.

[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 297.*]

(Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by A. R. Lanier against W. P. Kelly. Judgment for defendant, and plaintiff brings error. Affirmed.

Mrs. Lanier brought an action of trespass against Kelly. The proof showed that her husband was a tenant at will of the defendant, and that he got in arrears with the rent, and the defendant procured a dispossessory warrant to be issued by which the plaintiff's husband and the plaintiff, too, were evicted from the premises. It is admitted that she has no cause of action unless the process by which the eviction was made is void. The affidavit on which the warrant issued is conceded to be regular on its face. The warrant (omitting formal parts) is as follows: "W. P. Kelly, having made affidavit that A. R. Lanier is in possession as a tenant of a house and premises located at No. 379 Glennwood avenue, in the city of Atlanta, said state and county, property of W. P. Kelly, and fails to pay the rent due on said house and premises, this is therefore to command and require you to deliver to the said A. R. Lanier [italics ours], or his representatives, full and quiet possession of said house and premises described in said affidavit hereto attached, removing the said tenant with his property found thereon, away from the same. This, the 10th day of June, 1907." The warrant was exhibited to the tenant on the day issued, to wit, June 10th, but, owing to the tenant's sickness, it was not executed until August 22d. At that time the tenant was convalescent, but it was necessary for him to be removed to a hospital in an ambulance, and he suffered a relapse from being exposed. The goods were damaged in removal by reason or the fact that it rained on them before the removal was completed. There is no contention that unnecessary force or violence was used in effecting the removal, or that the eviction was malicious. On May 2d rent was paid up to May 22d, and at the time of this payment the tenant was notified to quit; his tenancy being at will. When the dispossessory warrant was issued, the tenant was in default with his rent, though at that time only 49 days had elapsed after he was given notice to quit.

Burton Smith, Lawton Nalley, and John McClelland, for plaintiff in error.

Anderson, Felder, Rountree & Wilson, for defendant in error.

RUSSELL, J. (after stating the facts as above). 1, 2. It is to be noted that this is a suit in trespass against the landlord by the tenant's wife. The case of Entelman v. Hagood, 95 Ga. 390, 22 S. E. 545, is authority for the proposition that, where a landlord without legal process forcibly and violently ejects a tenant and his personal goods from the rented premises, he is liable to the latter in an action of trespass, although the tenant was holding over beyond his term, was in arrears for rent, and had received legal notice to quit. Of course, the same result would follow if the process by which the eviction was effected was wholly void. In that case it is said: "It would seem that at common law the landlord had the right, after the expiration of the tenant's term, to enter immediately, and take possession of the rented premises, and that in so doing a resort to force was legal, provided no more force was used than was actually necessary to eject the tenant." It is then stated that since resort to self-help often resulted in a breach of the peace, where the tenant was unwilling to" be peacefully ejected, the Legislature by providing the summary method by which landlord could regain possession of his premises intended to abolish the common-law rule of self-help. In this state, therefore, the exclusive method of regaining possession of rented premises is the method prescribed by law, and, if the landlord resort to a different method, he does so at his peril. It is unnecessary for us to decide...