Construction.

- Statute is phrased in the disjunctive and must be so construed absent a clear indication that a disjunctive construction is contrary to the legislative intent. Cobb v. McCrary, 152 Ga. App. 212, 262 S.E.2d 538 (1979) (see O.C.G.A. § 44-7-71).

Authority is conferred by statute.

- Authority to issue dispossessory or distress warrants does not exist unless expressly conferred by statute. White v. Johnson, 151 Ga. App. 345, 259 S.E.2d 731 (1979).

Contents of affidavit.

- Former Code 1933, § 61-402 (see O.C.G.A. § 44-7-71) did not require that the affidavit used in applying for a distress warrant aver both nonpayment of rent and removal of goods from the premises; this construction avoided a conflict between former Code 1933, §§ 61-401 and 61-402 (see O.C.G.A. §§ 44-7-70 and44-7-71), was in keeping with the historical role of the distress warrant, and permitted both sections to be read in accordance with the statutes' plain meaning. Cobb v. McCrary, 152 Ga. App. 212, 262 S.E.2d 538 (1979).

Defective summons and affidavit.

- If the summons and affidavit are defective, a trial court was not authorized to dismiss them for failure to state a claim upon which relief can be granted; the deficiency was in the nature of the defense of "insufficiency of process" as described in Ga. L. 1972, p. 689, §§ 4 and 5 (see O.C.G.A. § 9-11-12(b)(4)), and failure to raise this defense specifically in a defensive pleading waived the defense. White v. Johnson, 151 Ga. App. 345, 259 S.E.2d 731 (1979).

Failure to verify affidavit.

- Party's failure to have the affidavit provided for in this statute verified before a state court judge does not change the fact that a state court is empowered to issue a distress warrant. Cobb v. McCrary, 152 Ga. App. 212, 262 S.E.2d 538 (1979) (see O.C.G.A. § 44-7-71).

Warrant issued by clerk.

- If the clerk and deputy clerks have been granted the power to perform all purely ministerial duties which, under the laws of this state, are performable by a justice of the peace, a distress warrant issued by the clerk or deputy clerk is valid. White v. Johnson, 151 Ga. App. 345, 259 S.E.2d 731 (1979).

Agents, attorneys-in-fact, or attorneys-at-law may proceed for and in behalf of landlords against tenants to collect rent past due or to recover possession of the premises. Jackson v. Oliphant, 88 Ga. App. 313, 76 S.E.2d 625 (1953).

Demand unnecessary.

- Landlord may distrain for rent without a previous demand and refusal to pay, and without the allegation thereof in the landlord's affidavit. Hill v. Reeves, 57 Ga. 31 (1876). See also Buffington v. Hilley, 55 Ga. 655 (1876); McDougal v. Sanders, 75 Ga. 140 (1885).

Amendment.

- An affidavit for a distress warrant is amendable. Bryant v. Mercier, 82 Ga. 409, 9 S.E. 166 (1889). See also Beach v. Averett, 106 Ga. 73, 31 S.E. 806 (1898).

Time for answer.

- Timely answer to an application for a distress warrant is made if the tenant files the tenant's answer before the date of a rescheduled hearing, regardless of the length of time between the date of service of the summons for the tenant to appear and the date of filing of the answer. Daniel v. Wells Oil Co., 205 Ga. App. 331, 422 S.E.2d 55 (1992).

Rent on premises in another state.

- One who has rent due one for premises which are in another state, or upon a contract of rental made in another state may proceed to collect one's rent by distress warrant in this state. Davis v. DeVaughn, 7 Ga. App. 324, 66 S.E. 956 (1910).

Trustees of an unincorporated religious society, holding title in themselves to the society's real property, may bring a distress warrant for rent through their secretary and agent against a tenant in possession of the property who is holding over and beyond the tenant's term and who refuses to pay rent. Jackson v. Oliphant, 88 Ga. App. 313, 76 S.E.2d 625 (1953).

Insane tenant.

- When tenant was sane when rent contract was entered into and during period when rent accrued, fact that tenant was adjudged insane prior to the time the distress warrant was issued and had no guardian at that time would not render a distress warrant void. Miller v. West, 83 Ga. App. 297, 63 S.E.2d 426 (1951).

Cited in D. Jack Davis Corp. v. Karp, 175 Ga. App. 482, 333 S.E.2d 685 (1985).

Am. Jur. 2d.

- 49 Am. Jur. 2d, Landlord and Tenant, § 591.

C.J.S.

- 52A C.J.S., Landlord and Tenant, § 1274.

ALR.

- Landlord's remedy by way of distress or lien on defaulting tenant's property on leased premises as including right to collect for all unpaid utility expenses, 99 A.L.R.3d 1100.