Coggins Et Al. v. Fuller Et Al., 108 Ga. App. 706, 134 S.E.2d 494 (1963)
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Judgment affirmed. Hall and Pannell, JJ., concur.
Summary
Judgment affirmed. Hall and Pannell, JJ., concur.
Text
Sims & Lewis, George E. Sims, Jr., contra.James E. Weldon, for plaintiffs in error.
J. W. Fuller et al., as the Board of Deacons and Trustees of the Pentecostal Fire Baptized Holiness Church of LaGrange, Georgia, swore out an affidavit to eject five named intruders from certain described land under the procedure authorized by Code 105-1501. This affidavit to eject intruders was subscribed on June 5, 1963. On June 25, 1963, a counter-affidavit sworn by only three of those averred to be intruders was tendered to the sheriff. A motion was made by the plaintiffs to dismiss the counter-affidavit on the ground that it was not timely filed. The trial court granted the motion and dismissed the counter-affidavit. Exceptions are brought to this judgment. Held:
Insofar as material here, the 110-year-old Code 105-1501 provides that ". . . it shall be the duty of such sheriff, at the earliest practicable day, to exhibit such affidavit to the person described as being in possession of such land or tenement, and to turn such person out of possession, unless the person so in possession shall tender to the sheriff a counter-affidavit, stating that he does in good faith claim a legal right to the possession of said land or tenement." The section is a codification of the Acts of 1853-54, p. 52.
In Sheats v. Blair,
As the statutes authorize a summary ejection of the intruders after three days following notice, and by judicial decision a jury trial is required if a counter-affidavit is filed at any time before ejection, the burden is placed upon the alleged intruders, if their counter-affidavit is filed after the expiration of the three days, to affirmatively show as a defense in their counter-affidavit that at the time of its filing they remained in possession of the premises.
If the counter-affidavit shows on its face that it was filed later than the three days authorized and there is no averment in it showing that the affiants remained in possession of the premises, upon proper motion made the counter-affidavit is subject to dismissal by the trial judge. That is the situation in this case.
1963
Notes:
1. The Walker case was overruled on other grounds in Anderson v. Albany &c. R. Co.,
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