O.C.G.A.

O.C.G.A. § 44-11-32 (2019)

Procedure on submission of counteraffidavit; trial

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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If the party in possession submits a counteraffidavit as provided in Code Section 44-11-30, the sheriff shall not turn him out of possession but shall leave both parties in their respective positions. In such an

event, the sheriff shall return both affidavits to the office of the clerk of the superior court of the county in which the land is located for a trial of the issue before a jury in accordance with the laws of this state.

History

Ga. L. 1853-54, p. 52, § 3; Code 1863, § 3981; Code 1868, § 4002; Code 1873,

§ 4074; Code 1882, § 4074; Civil Code 1895, § 4810; Civil Code 1910, § 5382; Code 1933, § 105-1503.

Annotations

JUDICIAL DECISIONS Jurisdiction of superior court exclusive. Chambliss v. Hawkins, 123 Ga. 361, 51 S.E. 337, 1905 Ga. LEXIS 468 (1905). When trial held. - The proceeding under O.C.G.A. § 44-11-30 being strictly summary and there being no provision as to when an issue formed upon a counteraffidavit to such a proceeding under O.C.G.A. § 44-11-32 may be tried, the trial of such an issue may be held at the term of court during which the counteraffidavit is filed. Hill v. Security Loan & Abstract Co., 35 Ga. App. 93, 132 S.E. 107, 1926 Ga. App. LEXIS 567 (1926). 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). Case on intruder warrant could not be in magistrate court. - Superior court erred in finding that the later-filed action, seeking an intruder warrant, had to be abated according to O.C.G.A. § 9-244, because, per the explicit language of O.C.G.A. § 44-11-32, the case on the intruder warrant could not have been brought in the magistrate court and, thus, the prior pending action doctrine did not apply. Brixmor/IA Northeast Plaza, LLC v. Sublet Atlanta Realty, LLC, 347 Ga. App. 223, 818 S.E.2d 681, 2018 Ga. App. LEXIS 493 (2018).

RESEARCH REFERENCES Am. Jur. 2d. 25 Am. Jur. 2d, Ejectment, §§ 75 et seq., 44 et seq.

C.J.S. 28A C.J.S., Ejectment, § 111 et seq.

Notes of Decisions

Cited in 4 cases (1 in the last 5 years), 2004–2023 · leading case: Brixmor/IA Ne. Plaza LLC v. Sublet Atlanta Realty, 818 S.E.2d 681 (Ga. Ct. App. 2018).

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Brixmor/IA Ne. Plaza LLC v. Sublet Atlanta Realty, 818 S.E.2d 681 (Ga. Ct. App. 2018). · cites it 10× “[and] shall return both affidavits to the office of the clerk of the superior court of the county in which the land is located for a trial of the issue before a jury .”

Sims v. Merritt, 608 S.E.2d 547 (Ga. Ct. App. 2004). · cites it 4× “Sims then requested a jury trial under OCGA§ 44-11-32. The court’s pretrial order noted that the only issue was whether the Merritts had a good-faith claim to the property.”

Brixmor/ia Ne. Plaza, LLC v. Sublet Atlanta Realty, LLC d/b/a Lava Spa (Ga. Ct. App. 2018). · cites it 8× “[and] shall return both affidavits to the office of the clerk of the superior court of the county in which the land is located for a trial of the issue before a jury.”

Andrew W. Bell v. Marina Lopez (Ga. Ct. App. 2023). · cites it 4× “” OCGA § 44-11-32. These summary ejection proceedings are intended to apply only to intruders, squatters, or disseizors, who enter in bad faith and without any claim or shadow of right.”

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