Constitutionality.

- See Rush v. Southern Property Mgt., Inc., 121 Ga. App. 360, 173 S.E.2d 744 (1970).

Purpose of section.

- It is the purpose of this statute to afford the parties a speedy trial on the merits. Queen v. Harrell, 126 Ga. App. 122, 190 S.E.2d 160 (1972) (see O.C.G.A. § 44-7-53).

Purpose in enacting this statute was to give defendants who are unrepresented by counsel and who are unschooled in the law an opportunity to state their defenses orally to the court as best they can and to have the substance of their defenses endorsed on the dispossessory warrant, thereby making a record upon which the case may proceed in the trial and appellate courts. Hill v. Hill, 241 Ga. 218, 244 S.E.2d 862 (1978); Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525, 258 S.E.2d 139 (1979); Denson v. Housing Auth., 150 Ga. App. 493, 258 S.E.2d 183 (1979) (see O.C.G.A. § 44-7-53).

Section not in conflict with Uniform State Court Rule 8.3. - Distinction made under Uniform State Court Rule 8.3 between dispossessory cases (one-day notice of trial) and other cases (20-day notice of trial) is not in conflict with the mandate of subsection (b) of O.C.G.A. § 44-7-53 that a trial of the issues in a dispossessory shall be had in accordance with the procedure prescribed for civil actions in courts of record. Favors v. Arnold, 181 Ga. App. 286, 351 S.E.2d 641 (1986).

Tenant's possession pending litigation.

- Failure to pay the rent as required will result in dispossession of the tenant pending final outcome of the litigation; the requirement of rent payments into the court registry is mentioned only in connection with the tenant's right of continued possession pending the litigation. Jelks v. World of Realty, Inc., 153 Ga. App. 720, 266 S.E.2d 357 (1980).

Money judgment held improper.

- Nothing in former Code 1933, § 61-303 or § 61-304 (see O.C.G.A. § 44-7-53 or § 44-7-54) provided for, or was consistent with, the entry of a money judgment against the defendant upon the defendant's failure to pay rent into the registry of the court. Jelks v. World of Realty, Inc., 153 Ga. App. 720, 266 S.E.2d 357 (1980).

Defects in title no defense.

- Claimed defects in landlord's title to premises cannot be raised as defense to proceeding for possession under former Code 1933, § 61-301 et seq. (see O.C.G.A. § 44-7-50 et seq.). McKinney v. South Boston Sav. Bank, 156 Ga. App. 114, 274 S.E.2d 34 (1980); Roberts v. Collins, 199 Ga. App. 614, 405 S.E.2d 508 (1991); Hague v. Kennedy, 205 Ga. App. 586, 423 S.E.2d 283 (1992), cert. denied, 205 Ga. App. 900, 423 S.E.2d 283 (1992).

Void sale no defense.

- Because two borrowers' allegation of wrongful foreclosure of their home was not a valid defense to a dispossessory action brought by the purchaser of their home at a nonjudicial foreclosure sale, pursuant to O.C.G.A. §§ 44-7-50 and44-7-53, the trial court's order issuing a writ of dispossession was affirmed. Vines v. LaSalle Bank Nat'l Ass'n, 302 Ga. App. 353, 691 S.E.2d 242 (2010).

Return of service sufficient.

- When a hold-over tenant failed to answer a summons issued under former Code 1933, § 61-302 (see O.C.G.A. § 44-7-51) and a default judgment was rendered against the tenant, the marshal's return of service reciting that "default may be opened not later than8-17-78" which was given to the tenant was sufficient under former Code 1933, § 61-303 (see O.C.G.A. § 44-7-53). Bannister v. Airport Assocs., 149 Ga. App. 501, 254 S.E.2d 742 (1979).

Date on back of summons.

- While better practice would be to include the statement required by this statute within the main paragraph of the summons, the placing of the date on the back does not constitute a failure to comply with this statute so as to void the summons. Woodruff v. B-X Corp., 154 Ga. App. 197, 267 S.E.2d 757 (1980) (see O.C.G.A. § 44-7-53).

Magistrate court had jurisdiction over dispossessory proceedings involving a property owner who, by remaining in possession of the premises after a lawful foreclosure of one's deed to secure debt, became a tenant at sufferance and subject to summary dispossession by the purchaser at the foreclosure sale. California Fed. Sav. & Loan Ass'n v. Day, 193 Ga. App. 690, 388 S.E.2d 727 (1989).

Removal to federal court.

- Even though Georgia courts have held that dispossessory actions were not civil actions, a dispossessory action filed by the Federal Home Loan Mortgage Corporation was properly removed to federal court under a Weems analysis since: (1) dispossessory actions were tried before a magistrate court, which was a regular judicial tribunal and required notice and service; (2) a dispossessory action was comparable to a civil trial if the tenant answered under O.C.G.A. § 44-7-53(b): and (3) rent was an issue of pecuniary value in a dispossessory action under O.C.G.A. §§ 44-7-52(a),44-7-53(b), and44-7-54. Fed. Home Loan Mortg. Corp. v. Matassino, 911 F. Supp. 2d 1276 (N.D. Ga. Dec. 3, 2012).

Subsection (a) of O.C.G.A. § 44-7-53 prohibits opening defaults in dispossessory actions in magistrate court. Johnson v. Housing Auth., 198 Ga. App. 816, 403 S.E.2d 97 (1991).

Grantor remaining in possession.

- When the grantor, or the grantor's privy, in a security deed remain in possession of the premises after lawful foreclosure of the deed, the grantor is a tenant at sufferance and is subject to being summarily dispossessed by the purchaser at the foreclosure sale, or by the purchaser's privy. Collins v. Administrator of Veterans Affairs, 156 Ga. App. 374, 274 S.E.2d 760 (1980).

Sale pursuant to power of sale.

- When all right, title, and interest of an owner has been divested by a sale made pursuant to a power of sale given by the owner in a deed to land to secure a debt, and the owner thereafter remains in possession, the owner is a tenant at sufferance of the purchaser and, as such, may be summarily dispossessed. Swindell v. Walker, 71 Ga. App. 603, 31 S.E.2d 670 (1944).

Proper parties.

- Only proper parties to an issue arising under a warrant sued out to dispossess a tenant holding over are the alleged landlord and the tenant, and it is error to allow other persons under whom the tenant claimed possession to be made parties defendant to the proceeding. Fitzgerald Trust Co. v. Shepard, 60 Ga. App. 674, 4 S.E.2d 689 (1939).

Discharge in bankruptcy not payment of rent.

- Discharge in bankruptcy of a debt existing on account of overdue rent is not payment of the rent within the meaning of this statute. Carter v. Sutton, 147 Ga. 496, 94 S.E. 760 (1917). See Hamilton v. McCroskey, 112 Ga. 651, 37 S.E. 859 (1901) (see O.C.G.A. § 44-7-53).

Issuance of writ of possession at initial hearing is error.

- Trial court errs in granting an immediate writ of possession at the initial hearing stage of the dispossessory proceedings. The purpose of that hearing is not to decide the substantive issues involved, but rather to determine the amount of money that the tenant has to pay into the registry of the court in order to remain in possession of the premises pending the ultimate resolution of the litigation. Bradshaw v. Jackson Hills Apts., 169 Ga. App. 447, 313 S.E.2d 734 (1984).

Landlord not estopped from dispossessing tenant by accepting rent after proceedings instituted.

- When a tenant's check is tendered and accepted at a time when the tenant is in continued possession of the premises, but after dispossessory proceedings have been instituted on the basis that the tenant is a tenant holding over, the acceptance of the rent, accruing after the dispossessory proceedings have been instituted, does not estop the landlord from pressing to dispossess the tenant. Cheeves v. Horne, 167 Ga. App. 786, 307 S.E.2d 687 (1983).

There is no right to trial by jury in summary dispossessory action. West v. VA, 182 Ga. App. 767, 357 S.E.2d 121 (1987).

Cited in Sanks v. Georgia, 401 U.S. 144, 91 S. Ct. 593, 27 L. Ed. 2d 741 (1971); Dampier v. Bank of Alapaha, 124 Ga. App. 618, 184 S.E.2d 693 (1971); Blocker v. Blackburn, 228 Ga. 285, 185 S.E.2d 56 (1971); Vlahos v. DeLong, 132 Ga. App. 722, 209 S.E.2d 12 (1974); Gainesville Liquidation, Inc. v. Hanley, 134 Ga. App. 472, 214 S.E.2d 723 (1975); Houston Gen. Ins. Co. v. Stein Steel & Supply Co., 134 Ga. App. 624, 215 S.E.2d 511 (1975); Speir v. Davis, 235 Ga. 788, 221 S.E.2d 575 (1976); Hodkinson v. Maloof, 137 Ga. App. 602, 224 S.E.2d 524 (1976); Smith v. Hudgens, 140 Ga. App. 562, 231 S.E.2d 530 (1976); Powers v. Simmerson, 142 Ga. App. 335, 235 S.E.2d 769 (1977); King v. Ellis, 146 Ga. App. 157, 246 S.E.2d 1 (1978); Crymes v. Crymes, 148 Ga. App. 299, 251 S.E.2d 155 (1978); Marshall v. U.S. Mgt. Corp., 149 Ga. App. 141, 253 S.E.2d 818 (1979); Leverette v. Moran, 153 Ga. App. 825, 266 S.E.2d 574 (1980); Crump v. Jordan, 154 Ga. App. 503, 268 S.E.2d 787 (1980); Peter E. Blum & Co. v. First Bank Bldg. Corp., 156 Ga. App. 680, 275 S.E.2d 751 (1980); King v. Chrisler, 160 Ga. App. 784, 287 S.E.2d 124 (1982); Smith v. Mack, 161 Ga. App. 95, 289 S.E.2d 299 (1982); Housing Auth. v. Hudson, 250 Ga. 109, 296 S.E.2d 558 (1982); Jordan v. Atlanta Neighborhood Hous. Servs., Inc., 169 Ga. App. 600, 313 S.E.2d 787 (1984); Taylor v. Carver State Bank, 177 Ga. App. 856, 341 S.E.2d 502 (1986); Kelley v. Daugherty, 201 Ga. App. 291, 410 S.E.2d 759 (1991); Browning v. Federal Home Loan Mtg. Corp., 210 Ga. App. 115, 435 S.E.2d 450 (1993).

In general.

- When an affidavit is made before a justice of the peace, and the tenant contests the dispossessory proceeding, the trial of the issue shall be in a court of record, and the justice of the peace shall transfer the proceedings to such court. Lopez v. Dlearo, 232 Ga. 339, 206 S.E.2d 454 (1974); Lamb v. Sims, 153 Ga. App. 556, 265 S.E.2d 879 (1980); Rucker v. Fuller, 247 Ga. 423, 276 S.E.2d 600 (1981).

No automatic transfer.

- There is no automatic transfer of a dispossessory action from the state court to the superior court upon the defendant's timely answer in the state court. Rowe v. Fleet Mtg. Corp., 226 Ga. App. 593, 487 S.E.2d 133 (1997).

Defendant in a dispossessory action was not entitled to an automatic transfer to superior court when the state court was the court of record with jurisdiction over the action. Gentry v. Chateau Properties, 236 Ga. App. 371, 511 S.E.2d 892 (1999).

State Court of DeKalb County is a "court of record," and thus is authorized to adjudicate a contested dispossessory action. Napper v. National Mtg. Group, Inc., 194 Ga. App. 148, 390 S.E.2d 70 (1990).

Filing in justice court.

- If the landlord chooses to file a dispossessory action in the justice court, the landlord does so with the risk that the tenant will answer, causing the justice court to lose jurisdiction. Rucker v. Fuller, 247 Ga. 423, 276 S.E.2d 600 (1981).

How transfer effected.

- Transfer of the case from the justice court to the superior court is not initiated by the tenant; rather, the transfer takes place by operation of the law. The tenant has merely answered the complaint and formed issues which must be tried in another court. Rucker v. Fuller, 247 Ga. 423, 276 S.E.2d 600 (1981).

Payment of costs upon transfer.

- When a dispossessory case is transmitted to the superior court unaccompanied by required advance costs or a proper pauper's affidavit, the clerk shall not be required to docket such case. The payment of advance costs and fees required by law shall be the responsibility of the plaintiff in the dispossessory action. In the event that the case is not docketed because of failure to pay costs or present a pauper's affidavit, the case must be dismissed for want of prosecution. Rucker v. Fuller, 247 Ga. 423, 276 S.E.2d 600 (1981).

Transfer denied.

- Because the commercial tenants did not assert a counterclaim in a landowner's dispossessory action, as the tenants were permitted to do under O.C.G.A. § 44-7-51(b), and the relief the tenants sought under O.C.G.A. § 44-7-53(b), to enjoin the landowner from pursuing the dispossessory action in the state court, was within the court's inherent jurisdiction to simply deny relief in the dispossessory action, there was no cause to grant the tenants' motion to transfer the matter to a superior court. Davita, Inc. v. Othman, 270 Ga. App. 93, 606 S.E.2d 112 (2004).

Removal to superior court was proper.

- Superior court's order vacating justice of peace's order in contested dispossessory action for lack of jurisdiction and removing case to superior court for a proceeding on merits was proper. Young v. Hinton, 163 Ga. App. 692, 295 S.E.2d 150 (1982).

Transfer improper when defendant does not answer.

- If the defendant never files an answer to a dispossessory proceeding in the justice of the peace court, that court retains jurisdiction over the case and the justice of the peace court's attempt to transfer the case to the state court is without foundation in law. Jones v. Cooke, 169 Ga. App. 516, 313 S.E.2d 773 (1984).

Dispossessory action held not transferable.

- In a dispossessory action filed in state court, there was no evidence of the lack of a landlord-tenant relationship, and no evidence justifying a challenge to the ownership of the land so as to require transfer of the case to the superior court. Bread of Life Baptist Church v. Price, 194 Ga. App. 693, 392 S.E.2d 15 (1990).

After a credit corporation filed a dispossessory warrant in state court and alleged that it was the owner of a house and that the defendants were tenants at sufferance, and after the defendants denied that they were tenants at sufferance and alleged that they owned the premises, the defendants' contention that the case should have been transferred to the superior court because the case involved a dispute over title to the premises was without merit. Claimed defects in the landlord's title to premises cannot be raised as a defense to a proceeding for possession. Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592, 409 S.E.2d 71, cert. denied, 200 Ga. App. 897, 409 S.E.2d 71 (1991).

Because the state court is a court of record with jurisdiction over a dispossessory action, the trial court did not err in denying the defendant's motion to transfer. Solomon v. Norwest Mortg. Corp., 245 Ga. App. 875, 538 S.E.2d 783 (2000).

Unqualified right to answer and counterclaim.

- Statute gives a tenant an unqualified right to answer and counterclaim in all dispossessory proceedings; it is unnecessary that this answer and counterclaim be accompanied by any bond or rent payment. Mountain Hardwoods & Pine, Inc. v. Coosa River Sawmill Co., 233 Ga. 414, 211 S.E.2d 712 (1975); Seagraves v. Mount Zion Village, Inc., 134 Ga. App. 719, 215 S.E.2d 688 (1975); McKisic v. College Park Hous. Auth., 134 Ga. App. 813, 216 S.E.2d 369 (1975) (see O.C.G.A. § 44-7-53).

Defendant in a dispossessory proceeding has an unqualified right to answer and counterclaim. Stroup v. Robbie Jon Dev. Corp., 159 Ga. App. 652, 284 S.E.2d 667 (1981).

Opening of default judgment improper.

- Intent of the 1982 amendment to O.C.G.A. § 44-7-53 was to deny the tenant the opportunity to contest the dispossessory action if the tenant failed to answer the summons within the seven days prescribed, and thus the trial court had no authority to grant a motion to open a default judgment. A.G. Spanos Dev., Inc. v. Caras, 170 Ga. App. 243, 316 S.E.2d 793 (1984).

The 1982 amendment of subsection (a) of O.C.G.A. § 44-7-53, which deleted language pertaining to opening of default, indicates the legislative intent to deny a tenant an opportunity to contest a dispossessory action if the tenant fails to answer the summons within the prescribed time. Avery v. Warrick, 172 Ga. App. 674, 324 S.E.2d 532 (1984).

What constitutes an "answer" in a dispossessory action is to be liberally construed. Rucker v. Fuller, 247 Ga. 423, 276 S.E.2d 600 (1981).

Formalities not required.

- Tenant's attempt to contest a dispossessory proceeding is not to be ignored, or dismissed, because of a failure to meet the formalities required for other judicial proceedings but not expressly required for a dispossessory proceeding. Lamb v. Housing Auth., 146 Ga. App. 786, 247 S.E.2d 597 (1978).

Answer not conditioned on rent payment.

- Failure to make a rent payment does not render defective the answer and counterclaim so that no issue remains to be tried. Seagraves v. Mount Zion Village, Inc., 134 Ga. App. 719, 215 S.E.2d 688 (1975); Jelks v. World of Realty, Inc., 153 Ga. App. 720, 266 S.E.2d 357 (1980).

Motion for dismissal treated as answer.

- In a dispossessory action against the former owners of property by purchasers at a foreclosure sale, the former owners' pro se motion for dismissal was legally sufficient since it created a triable issue as to the existence of a landlord-tenant relationship. Womack v. Columbus Rentals, Inc., 223 Ga. App. 501, 478 S.E.2d 611 (1996).

Oral or written answer.

- "Answer" which is sufficient to open the default may be oral or in writing. Hill v. Hill, 241 Ga. 218, 244 S.E.2d 862 (1978).

Unsigned answer.

- Written but unsigned answer is sufficient to create a contested dispossessory proceeding and thus to open a default to a dispossessory summary. Lamb v. Housing Auth., 146 Ga. App. 786, 247 S.E.2d 597 (1978).

Effect of failure to answer.

- Language "If the tenant fails to answer" is construed to mean and refer to the time of the hearing. If the tenant fails to so answer, the court shall issue a writ of possession; and the plaintiff shall be entitled to a verdict and judgment by default for all rents due, in open court or chambers, as if every item and paragraph of the affidavit were supported by proper evidence without the intervention of the jury. West Court Square v. Assayag, 129 Ga. App. 59, 198 S.E.2d 510 (1973).

Tenant waived any argument that the manager filing a dispossession action against the tenant lacked authority to bring the action as it ceased to exist under O.C.G.A. § 14-3-1105 due to a merger; the tenant failed to raise the issue in the dispossession proceedings, or to answer the dispossession affidavit at all under O.C.G.A. § 44-7-53, making all of the allegations in the complaint admitted, and the tenant was barred from relitigating the matter in a suit for wrongful possession by collateral estoppel. Vickers v. Merry Land & Inv. Co., 263 Ga. App. 316, 587 S.E.2d 816 (2003).

Answer raised issue of fact as to landlord-tenant relationship.

- Since the defendants in a dispossessory action denied that a landlord-tenant relationship existed, and there was no evidence or admission that the plaintiff was the owner of the premises or that the defendants were on the premises without the landlord's consent, genuine issues of material fact remained as to the plaintiff's allegations that it was the owner of the premises and that the defendants were tenants at sufferance. The trial court therefor erred in striking the defendants' answer, granting a judgment on the pleadings, and entering an immediate writ of possession. Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592, 409 S.E.2d 71, cert. denied, 200 Ga. App. 897, 409 S.E.2d 71 (1991).

Case on trial calendar.

- Under the provisions of this statute, a tenant who has filed the tenant's answer in a dispossessory proceeding is entitled to have the case placed upon the trial calendar so that a trial of the issues may be had in accordance with the procedure prescribed for civil actions in courts of record. Whipper v. Kirk, 156 Ga. App. 218, 274 S.E.2d 662 (1980) (see O.C.G.A. § 44-7-53).

Trial in magistrate court.

- If a tenant answers, a trial of the issues may be had in the magistrate court. 1983 Op. Att'y Gen. No. U83-69.

Am. Jur. 2d.

- 49 Am. Jur. 2d, Landlord and Tenant, § 960.

C.J.S.

- 52A C.J.S., Landlord and Tenant, §§ 1384, 1392.

ALR.

- Tenant's liability in damages for holding over after expiration of term as affected by reason or excuse for so doing, 122 A.L.R. 280.

Retaliatory eviction of tenant for reporting landlord's violation of law, 23 A.L.R.5th 140.