Opinion
32285.
DECIDED FEBRUARY 17, 1949.
Motion to dismiss levy; from Fulton Civil Court — Judge Quincy Arnold. October 22, 1948.
G. S. Peck, for plaintiff in error.
Hewlett Dennis, Charles S. Barton, T. F. Bowden, Mrs. Florence H. Dendy, contra.
The only method now provided by law for the arresting of a distress warrant is that of the filing of a counter-affidavit alleging that the sum distrained for, or some part thereof, is not due, together with security for the eventual condemnation money where the tenant takes possession of the property. Code, § 61-404; McCulloch v. Good, Small Co., 63 Ga. 519; Huckaby v. Brooks, 75 Ga. 678; Speed Oil Co. v. Aldredge, 192 Ga. 285 ( 15 S.E.2d 214); Withers v. Hopkins Place Savings Bank, 104. Ga. 89 (30 S.E. 766). In the absence of a counter-affidavit as required by the Code there is no case in court and the court does not have jurisdiction to decide any issues, whether on motion to dismiss the levy as here, or otherwise. Kennedy v. Miller, 179 Ga. 234 ( 175 S.E. 588), and cases cited; Smith v. Green Postell, 34 Ga. 178; Brown v. Brown, 99 Ga. 168 ( 25 S.E. 95); Andrews v. Sims, 27 Ga. App. 338 ( 108 S.E. 258); Gober v. Barry, 4 Ga. App. 4 ( 60 S.E. 807). The court did not err in sustaining the demurrer to the motion to dismiss the levy. It is not necessary to decide the various questions raised by the motion to dismiss the levy.
Judgment affirmed. Sutton, C. J., and Parker, J., concur.
DECIDED FEBRUARY 17, 1949.
Ralph Wright Jr., E. M. Myers, and W. R. Cox swore out a distress warrant against Northside Farmers Market Inc., which was levied on "one envelope and contents pointed out by Pltf. R. W. Jr.)." To this execution the defendant filed an affidavit of illegality on the grounds that the contents of the envelope levied on consisted of silver certificates of the United States Government, Treasury certificates or Federal Reserve notes and that each was a chose in action and not subject to levy, and that the levying officer knew of such fact at the time of the levy; that the money when levied on was in possession of the plaintiff, Ralph Wright Jr., who procured same by cashing a check and that the currency was not in the possession of the defendant and had never been in its possession; that the currency levied on represented the amount of an indebtedness due by Ralph Wright Jr. and E. M. Myers to defendant, which was a chose in action and not subject to levy, and that said currency was not capable of being identified as the property of the defendant into whose possession it had never come. The affidavit of illegality was accompanied by a forthcoming bond. The plaintiffs filed a general demurrer to the affidavit of illegality and traversed the allegations made therein, on which issue was joined. The defendant then amended its affidavit of illegality by more fully stating facts tending to show that the money levied on represented an indebtedness, that the debt was a chose in action and not subject to levy. The general demurrer to the affidavit of illegality was then renewed. The defendant then amended its pleadings so as to designate them a motion to dismiss the levy rather than an affidavit of illegality. No bond was given as required by law to arrest the distress warrant and no affidavit was added alleging that no rent was due. Upon the renewal of the general demurrer to the defensive pleadings the court sustained the demurrer and dismissed the motion to quash the levy. The defendants except to this judgment.