Elam v. Hamilton

Decided November 28, 1882

Supreme Court of Georgia · decided 1882-11-28

[On account of providential cause, Jackson, Chief Justice, did not preside in this cased 1. A distress warrant, unless arrested by counter-affidavit, is. final process, and may be levied on any property belonging to the debtor, and the same may be advertised and sold as in cases of levy under execution. The only difference between the lien of an ordinary common law judgment, and that arising under an uninterrupted distress warrant, is that the former binds the property of the defendant from its date, and the latter from the time of the levy. They both have the same general lien on the defendant’s property, as qualified above. 2. When a counter-affidavit is filed, the process then becomes mesne, and the proceeding amounts to a suit for the rent; and pending the same, an action of complaint will not lie for the rent covered by the warrant, unless the proceeding under the distress warrant is so de- ' fective that no recovery can possibly be had thereon. 66 Ga., 729 ; 34 lb., 180.

Good law ✅— No negative treatment on recordhow we know

Decided 1882-11-28

How this case has been cited

Cited by 15 later decisions — most recently February 1977

4 federal appellate · 11 state decisions

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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Crawford, Justice.

¶1[On November 15, 1881, Elam brought his action of complaint against Hamilton in a justice’s court, founded on a promissory note, dated January 1, 1878, due January 1, 1879, to Mrs. Tummons for rent. The defendant filed a plea in abatement, alleging that on February 15, 1879, Mrs. Tummons had sued out a distress warrant for rent, based on the same debt; that it had been levied on the tools of defendant, and was standing undisposed of.

¶2On the trial, the evidence showed that the distress warrant had been issued and levied, and that a counter-affidavit had been filed and remained undisposed of. The justice rendered a judgment sustaining the plea, and plaintiff carried the case to the superior court by certiorari. On the hearing, the judge dismissed the certiorari, and plaintiff excepted.]