Phillips v. Rawls

• Decision Date: 23 December 1932
• Docket Number: 22414.
• Citation: 167 S.E. 189,46 Ga.App. 200
• Parties: PHILLIPS v. RAWLS.
• Court: Georgia Court of Appeals

167 S.E. 189

46 Ga.App. 200

PHILLIPS v. RAWLS.

No. 22414.

Court of Appeals of Georgia, Second Division

December 23, 1932

Syllabus by Editorial Staff.

Distress warrant is final process until arrested by counter affidavit and replevy bond (Civ. Code 1910, § 5391).

In distress warrant proceeding, when defendant replevies property, levy becomes functus, and proceeding is converted into ordinary action for rent, with bond standing as security (Civ. Code 1910, § 5391).

Distress warrant operates as final process where counter affidavit is dismissed, but otherwise question of lien is not involved and landlord's remedy is on bond (Civ. Code 1910, § 5391).

In distress warrant proceeding, where defendant filed counter affidavit and executed statutory bond replevying property only question on trial was whether tenant owed rent distrained for (Civ. Code 1910, § 5391).

Question of whether landlord's lien might be enforced against crops grown on rented premises, which defendant alleged and testified had been made with money expended by him which he received as a war risk veteran, was in no wise involved.

Superior court is court of general jurisdiction, having concurrent jurisdiction with justices' courts in all civil cases involving less than $100 (Civ. Code 1910, § 4849; Const. art 6, § 4, par. 3).

Superior court properly overruled motions to quash distress warrant and to remand case to justices' court on ground amount distrained for was less than $100 (Civ. Code 1910, § 4849; Const. art. 6, § 4, par. 3).

Error from Superior Court, Miller County; C. W. Worrill, Judge.

Distress warrant proceeding by Mrs. Grover Rawls against Gary Phillips. To review the judgment, defendant brings error.

Affirmed.

W. I. Geer, of Colquitt, for plaintiff in error.

P. Z. Geer, of Colquitt, for defendant in error.

Syllabus OPINION.

JENKINS P.J.

1. A distress warrant is a final process until arrested by counter affidavit and replevy bond. Gober v. Barry, 4 Ga.App. 4 6, 60 S.E. 807. But when the defendant replevies the property the levy becomes functus, and the proceeding is converted into an ordinary action for rent, with the bond standing as security in the event of a judgment for the plaintiff. If the counter affidavit is dismissed, the distress warrant at once becomes again operative as final process. Griggs v. Willbanks, 96 Ga. 744, 22 S.E. 327. But when it stands and the property is released under the affidavit and bond, the question of lien is not involved, and the plaintiff's recourse at the end of the suit will be upon his judgment on the bond. Rountree v. Rutherford, 65 Ga. 444 (2); Davis v. DeVaughn, 7 Ga.App. 324, 326, 66 S.E. 956; Andrews v. Sims, 27 Ga.App. 338, 108 S.E. 258. Accordingly, where, as in the instant case, the defendant filed a counter affidavit denying that the sum distrained for was due, and executed bond as required by Civ. Code 1910, § 5391, for the eventual condemnation money, replevying the property, on the trial of the distress warrant proceeding the question of whether or...