O.C.G.A. § 44-11-30 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION PROCEDURE General Consideration Similarity of eviction and ejectment warrants. - Dispossessory warrants used in dispossessing tenants holding over, and warrants for the ejection of intruders, are different only insofar as their specific purposes are concerned, such difference depending on the relationship between the parties. Their natures and the ultimate ends they accomplish are the same, the dispossession of one in favor of another who is legally entitled to the possession. Dantley v. Burge, 88 Ga. App. 478, 77 S.E.2d 107, 1953 Ga. App. LEXIS 1114 (1953). Process not abused when used in eviction. - This process was designed to accomplish eviction and to gain possession of the premises, and where it was used by the defendant to accomplish that end, it cannot, then, be said that the process was perverted or put to a use which the law did not intend that it be put. Dantley v. Burge, 88 Ga. App. 478, 77 S.E.2d 107, 1953 Ga. App. LEXIS 1114 (1953). Basis for determining validity of process. - In determining whether the process was perverted and put to an unintended use, the law, in an abuse of legal process case, will look to the nature of the process and the ultimate end it is designed to accomplish, and not to the specific purpose of that particular process. Dantley v. Burge, 88 Ga. App. 478, 77 S.E.2d 107, 1953 Ga. App. LEXIS 1114 (1953). Section construed liberally as to defendant. - O.C.G.A. § 44-11-30 provides for a harsh and speedy process, and should be construed strictly as to the plaintiff but liberally as to the defendant. Paige v. Dodson, 46 Ga. 223, 1872 Ga. LEXIS 36 (1872). Section applies to intruders, squatters, and disseizors. - The remedy pre-

scribed in O.C.G.A. § 44-11-30 is intended to apply only to intruders, squatters or disseizors, who enter in bad faith and without any claim or shadow of right. Sheats v. Blair, 7 Ga. App. 272, 66 S.E. 812, 1910 Ga. App. LEXIS 238 (1910). No application to discharged employees. - The remedy prescribed in O.C.G.A. § 44-11-30 cannot be made to apply against a discharged employee, for the employee’s entry was not originally unlawful and the employee could easily defeat the proceeding by filing a counteraffidavit of claim of right. MacKenzie v. Minis, 132 Ga. 323, 63 S.E. 900, 1909 Ga. LEXIS 85 (1909). No application to vendor who remains in possession. - Where the owner of land sells and conveys it to another by absolute conveyance, but does not actually go out of possession, even though the vendee be also in possession, the latter cannot eject the former from the premises as an intruder, by the summary process of O.C.G.A. § 44-11-30. Russel v. Chambers, 43 Ga. 478, 1871 Ga. LEXIS 282 (1871); Williams v. McMichael, 64 Ga. 445, 1879 Ga. LEXIS 101 (1879); Durden v. Clack, 94 Ga. 278, 21 S.E. 521, 1894 Ga. LEXIS 65 (1894); Thompson v. Glover, 120 Ga. 440, 47 S.E. 935, 1904 Ga. LEXIS 580 (1904). Proceeding emphasizes defendant’s good faith, not plaintiff’s title. - In a proceeding to eject an intruder, the sole question concerns the good faith of the defendant in entering upon the land and in claiming the right of possession; title is only incidentally involved. Lane v. Williams, 114 Ga. 124, 39 S.E. 919, 1901 Ga. LEXIS 602 (1901); Forman v. Pelham, 8 Ga. App. 822, 70 S.E. 158, 1911 Ga. App. LEXIS 162 (1911). Purchasers of real property under warranty deed from the record title holder’s

brother sufficiently established their good faith to be entitled to a jury trial on the title holder’s claim in ejectment; therefore, a jury verdict in the purchasers’ favor was upheld. Sims v. Merritt, 270 Ga. App. 877, 608 S.E.2d 547, 2004 Ga. App. LEXIS 1661 (2004). Section must be followed in ejection. - O.C.G.A. § 44-11-30 prescribes the manner in which one must eject intruders from possession of land and tenements, and where persons are in possession of lands and tenements, and another person who claims right of possession claims that those holding possession are intruders holding without good faith, the claimant must resort to the judicial manner prescribed in O.C.G.A. § 44-11-30 in ejecting the alleged intruders. Allison v. Hodo, 84 Ga. App. 790, 67 S.E.2d 606, 1951 Ga. App. LEXIS 798 (1951). Owner cannot forcibly evict intruders. - Even if defendants in ejectment are intruders and not tenants, plaintiff owes them a duty not to use force in evicting them from the premises. Allison v. Hodo, 84 Ga. App. 790, 67 S.E.2d 606, 1951 Ga. App. LEXIS 798 (1951). Owner liable in damages for wrongful ouster. - If one without regard for O.C.G.A. § 44-11-30 forcefully ejects the alleged intruders, that person can be held liable for any damages arising out of such wrongful ouster. Allison v. Hodo, 84 Ga. App. 790, 67 S.E.2d 606, 1951 Ga. App. LEXIS 798 (1951). Removing furniture into the yard instead of into some protective place of storage aggravates the wrongful ouster, regardless of the manner in which the furniture was removed, and the court is authorized to award additional damages either to deter the wrongdoer or as compensation for the wounded feelings of one wrongfully ousted. Allison v. Hodo, 84 Ga. App. 790, 67 S.E.2d 606, 1951 Ga. App. LEXIS 798 (1951). Plaintiff with only color of title may remove possessor in bad faith. - A plaintiff in possession under a deed conferring color of title, if not title, may evict as an intruder a person who has entered on the premises in bad faith, under a pretended claim of title. It is not the rightfulness or sufficiency of the possess-

or’s claim that gives the possessor the right to evict, but the possessor’s honesty. Burdock v. Miller, 21 Ga. 368, 1857 Ga. LEXIS 68 (1857); McHan v. Stansell, 39 Ga. 197, 1869 Ga. LEXIS 202 (1869); Thorpe v. Atwood, 100 Ga. 597, 28 S.E. 287, 1897 Ga. LEXIS 110 (1897). Subsequent entry by one who surrenders land is intrusion. - Where parties having possession of land made a formal surrender thereof, evidence by writing, and afterward, in direct contravention of such surrender, entered on the land, they were intruders, and subject to the proceedings provided for by O.C.G.A. § 44-11-30. Burdock v. Miller, 21 Ga. 368, 1857 Ga. LEXIS 68 (1857); Baker v. Downing, 69 Ga. 746, 1882 Ga. LEXIS 329 (1882). If one joint plaintiff should not recover, none may. - Where a joint action for land is brought by several persons, and the evidence shows that one of them is not entitled to recover, there can be no recovery at all. The rule in such case is the same whether the action be in the statutory or fictitious form. Paine v. Thomas, 228 Ga. 519, 186 S.E.2d 737, 1972 Ga. LEXIS 824 (1972). Plaintiff who purchased realty at executor’s private sale and who received the executor’s authorization to take possession is entitled to eject from possession an earlier purchaser who has failed to make payments, even if the testator did not confer on the executors the right to sell at private sale. Bagley v. Stephens, 78 Ga. 304, 2 S.E. 304, 2 S.E. 545, 1886 Ga. LEXIS 234 (1886). Procedure Plaintiff’s affidavit may be made before county judge. - Affidavit may be made before any officer authorized to administer an oath, thus differing from the affidavit which is the foundation of a proceeding against a tenant, which must be taken before a judge of the superior court or a justice of the peace. (See O.C.G.A. § 44-7-50.) Consequently, a county judge can administer the oath in this proceeding and then determine the issue made by the defendant’s counter-affidavit. Griswold v. Rutherford, 109 Ga. 398, 34 S.E. 602, 1899 Ga. LEXIS 666 (1899); Rigell v. Sir-

Procedure (Cont’d) mans, 123 Ga. 455, 51 S.E. 381, 1905 Ga. LEXIS 492 (1905). Attorneys at law. - An attorney at law is not such an agent, without special appointment, as would authorize the attorney to make an affidavit under the provisions of O.C.G.A. § 44-11-30. Montgomery v. Walker, 41 Ga. 681, 1871 Ga. LEXIS 166 (1871). Defendant may take an oath to the counteraffidavit before the sheriff who comes to turn defendant out of possession. Simpson v. Wall, 41 Ga. 105, 1870 Ga. LEXIS 37 (1870). File any time before eviction. - The defendant must make and file a counteraffidavit before actual eviction, but it may be made at any time before such eviction. Simpson v. Wall, 41 Ga. 105, 1870 Ga. LEXIS 37 (1870); Montgomery v. Walker, 41 Ga. 681, 1871 Ga. LEXIS 166 (1871); Sheats v. Blair, 7 Ga. App. 272, 66 S.E. 812, 1910 Ga. App. LEXIS 238 (1910). Sheriff will dispossess unless counteraffidavit shown. - When an affidavit is made for the removal of an intruder, as provided by O.C.G.A. § 44-11-30, it is the duty of the sheriff, at the earliest practicable day, to exhibit the affidavit to the person described therein, as being in possession of the land, and to turn such person out of the possession thereof, unless the person so in possession shall at once tender to the sheriff the counteraffidavit prescribed in O.C.G.A. § 44-11-30. Simpson v. Wall, 41 Ga. 105, 1870 Ga. LEXIS 37 (1870). Defective counteraffidavit gives the defendant no standing in court, it cannot be amended, and a second one cannot be made. Hass v. Gardner, 36 Ga. 477, 1867 Ga. LEXIS 71 (1867); Paige v. Dodson, 46 Ga. 223, 1872 Ga. LEXIS 36 (1872); Yancey v. Karwisch, 129 Ga. 788, 59 S.E. 777, 1907 Ga. LEXIS 584 (1907); Stephens v. Mathis, 142 Ga. 117, 82 S.E. 520, 1914 Ga. LEXIS 611 (1914). Clerical error not defective. - A defendant’s affidavit that defendant “claims the bona fide legal right to possession” of the premises complies with O.C.G.A. § 44-11-30; placing the word “the” before the words “bona fide” is an

evident clerical mistake, the real meaning being that defendant “claims the bona fide, the legal right to the possession.” Paige v. Dodson, 46 Ga. 223, 1872 Ga. LEXIS 36 (1872). Husband’s counteraffidavit may state he is wife’s agent. - A husband may make a counteraffidavit that he holds possession as agent of his wife and thus make an issue for trial. Jackson v. Dickson, 73 Ga. 126, 1884 Ga. LEXIS 54 (1884). It is error to dismiss counter-affidavit properly made because of nonappearance of defendant at trial. Yancey v. Karwisch, 129 Ga. 788, 59 S.E. 777, 1907 Ga. LEXIS 584 (1907). If counter-affidavit shows bad faith, directed verdict proper. - Where the action is brought under O.C.G.A. § 44-1130, as a summary action to eject intruders, the sole question in such a case is whether or not the defendant in good faith claims the right to occupy the premises in question; and when the counter-affidavit taken with the admissions of the defendant made on cross-examination and under oath show that no issuable defense is made, or that the defendant does not in good faith claim the right to possession of the disputed premises a finding in favor of the plaintiffs is demanded and it is proper for the trial judge to direct a verdict for the plaintiffs. Krasner v. Crosswell, 80 Ga. App. 134, 55 S.E.2d 381, 1949 Ga. App. LEXIS 790 (1949). County court has jurisdiction to try applications for eviction of intruders, and it would be no ground to dismiss a proceeding for this purpose that the evidence showed the plaintiff’s remedy was by ejectment; but such evidence would require an adjudication in favor of the defendant on the merits. Durden v. Clack, 94 Ga. 278, 21 S.E. 521, 1894 Ga. LEXIS 65 (1894). Equity court may have final adjudication. - When in the course of proceedings under O.C.G.A. § 44-11-30 equitable jurisdiction arises, a court of equity may hold the case for final adjudication. Wyley v. Whitely, 38 Ga. 605, 1869 Ga. LEXIS 281 (1869). No trial by justice of the peace. - A proceeding instituted under O.C.G.A.

§ 44-11-30 cannot be made the basis of a trial before a justice of the peace and a jury. Such a trial is coram non judice, and its result a nullity. Music v. Barber, 99 Ga. 799, 27 S.E. 164, 1896 Ga. LEXIS 524 (1896). No necessity of process and return. - Under O.C.G.A. § 44-11-30, no process or return of service is required. Hill v. Security Loan & Abstract Co., 35 Ga. App. 93, 132 S.E. 107, 1926 Ga. App. LEXIS 567 (1926). Bona fide claim to possession good defense. - That the alleged intruder claims the legal right to possession of the land in good faith is a legal defense against eviction under such process. Hill v. Security Loan & Abstract Co., 35 Ga.

App. 93, 132 S.E. 107, 1926 Ga. App. LEXIS 567 (1926). Where evidence is conflicting, verdict against defendant should not be directed. Stilwell v. Watkins, 135 Ga. 149, 68 S.E. 1114, 1910 Ga. LEXIS 449 (1910). Where the evidence is conflicting, the plaintiff should not be nonsuited. Coffey v. Pace, 106 Ga. 293, 32 S.E. 115, 1898 Ga. LEXIS 83 (1898). Certiorari is proper remedy where dissatisfied with judgment. - The proper procedure by a party dissatisfied with a judgment in the proceeding is by certiorari, not by appeal. Rigell v. Sirmans, 123 Ga. 455, 51 S.E. 381, 1905 Ga. LEXIS 492 (1905).

RESEARCH REFERENCES Am. Jur. 2d. 25 Am. Jur. 2d, Ejectment, §§ 1 et seq. C.J.S. 28A C.J.S., Ejectment, §§ 1 et seq., 24 et seq. ALR. Rights and remedies of tenant who remains in possession of all or part of the premises against landlord for interfering with his possession or enjoyment, 20

A.L.R. 1369; 28 A.L.R. 1333; 64 A.L.R. 900. Right to eject customer from store, 33 A.L.R. 421. Life tenant’s right of action for injury or damage to property, 49 A.L.R.2d 1117. Right of landlord legally entitled to possession to dispossess tenant without legal process, 6 A.L.R.3d 177.