Summary
In Brown, we held dispossessory and distress proceedings to be void ab initio because the deputy clerk of the Civil and Criminal Court of Cobb County, rather than the judge thereof, issued a dispossessory warrant and a distress warrant.
Summary of this case from White v. JohnsonOpinion
42993, 42994.
SUBMITTED SEPTEMBER 7, 1967.
DECIDED DECEMBER 5, 1967.
Dispossessory warrant. Cobb Civil and Criminal Court. Before Judge Bullard.
Doyle C. Brown, L. S. Cobb, for appellant.
Shaw Terrell, James R. Shaw, Wendell G. Terrell, Sr., for appellee.
The Deputy Clerk of the Civil and Criminal Court of Cobb County issued a dispossessory warrant (Case No. 42993) and a distress warrant (Case No. 42994) in favor of Cobb Federal Savings Loan Association against Doyle Brown. In each case the tenant made counter-affidavit and gave bond and the trial court thereafter overruled the tenant's general demurrer to the warrants. Held:
The law governing the administration of proceedings for the dispossession of tenants and for distraint for rent must be strictly construed. The authority to issue dispossessory or distress warrants does not exist unless expressly conferred by statute. Griswold v. Rutherford, 109 Ga. 398 ( 34 S.E. 602); Woolsey v. Lawshe, 1 Ga. App. 817 ( 57 S.E. 1039); Newton v. Daniel Co., 14 Ga. App. 152 ( 80 S.E. 509); Wallace Wallis v. Kent, 15 Ga. App. 615 ( 83 S.E. 1100). The deputy clerk of the Civil and Criminal Court of Cobb County had no authority under the Act creating that court to administer the oaths or to issue the warrants in these proceedings. See Ga. L. 1964, p. 3211 as amended, Ga. L. 1965, p. 3313; Ga. L. 1966, p. 2904. Hence the proceedings were void ab initio. Griswold v. Rutherford, 109 Ga. 398, Supra; Wallace Wallis v. Kent, 15 Ga. App. 615, supra.
Judgment reversed in each case with direction that the trial court dismiss the proceedings. Pannell and Whitman, JJ., concur.