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67 Ga. 41

Anders v. Blount

Supreme Court of Georgia

Decided May 15, 1881

Supreme Court of Georgia · decided 1881-05-15

<p>1. Where an affidavit to obtain a distress warrant stated that certain rent was due,a counter-affidavit which denied that the sum distrained for was due, was not demurrable. If the landlord desired to dis-train before the rent was due, his affidavit should have stated the ground therefor.</p> <p>2. When a counter-affidavit to a distress warrant has been dismissed, the case is out of court, and a judgment for the plaintiff for the amount of rent claimed cannot be rendered.</p> <p>3. Since the constitution of 1877 judgment by the court can only be rendered where the suit is on an unconditional contract in writing.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1881-05-15

How this case has been cited

Cited by 9 later decisions — most recently November 1937

9 state decisions

40188118901900191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Jacicson, Chief Justice.

¶11. The landlord may distrain for rent as soon as the same is due, or before due if the tenant is seeking to remove his goods from the premises. In this case the landlord does not make affidavit that the tenant is seeking to remove his goods, but simply swears that the rent is due. To this the counter-affidavit of defendaftt is in the words of the statute that the sum distrained for is not due, and defendant gave bond and security for the eventual condemnation money. Code, §4083. .

¶2Therefore, it was error to dismiss the counter-affidavit.

¶32. After dismissing the counter-affidavit, the court gave judgment for the plaintiff against defendant and his surety on the bond. This was also error, because the entire cage was out of court when the counter-affidavit went out. 61 Ga., 199; 63 Ib., 519.

¶43. Besides, the record does not show that the case was founded on an unconditional contract in writing, and if not, the court should not have entered up the judgment without proof before a jury. Constitution, 1877; Sup. to Code, §624. 4

¶5Judgment reversed.

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