Opinion
14670.
NOVEMBER 10, 1943.
Dispossessory warrant. Before Judge Humphrey. Toombs superior court. May 25, 1943.
Chalmers Chapman and William B. Kent, for plaintiff in error.
B. P. Jackson, contra.
Home Owners Loan Corporation sued out a dispossessory warrant against Mrs. Mary Brumfield. The defendant filed a counter-affidavit, and gave bond. She alleged that she was not holding over and beyond her term, that the relation of landlord and tenant did not exist between the parties, and that she owned the premises. After a directed verdict in favor of the plaintiff, and denial of a new trial, the defendant sued out a bill of exceptions, and brought the case to this court. Held:
1. Where a dispossessory warrant is sued out to evict a tenant, who files a counter-affidavit alleging facts which are only defensive in character, and no equitable or affirmative relief is prayed, the action is a statutory one falling within the jurisdiction of the Court of Appeals. Arnold v. Water Power Co., 147 Ga. 91 ( 92 S.E. 889); Ryals v. Atlantic Insurance Co., 181 Ga. 541 ( 182 S.E. 896); Downs v. Weaver, 184 Ga. 856 ( 193 S.E. 858).
2. The fact that the defendant in such proceeding claimed to own the premises "did not put her title directly in issue, but it was only incidentally involved." Roberts v. Mitchell, 166 Ga. 229 (2) ( 142 S.E. 882); Radcliffe v. Jones, 174 Ga. 324 ( 162 S.E. 679); Ryals v. Atlantic Insurance Co., supra.
3. This case not involving title to land directly, and not otherwise falling within the jurisdiction of this court, it is transferred to the Court of Appeals. Code, §§ 2-3005, 2-3009.
So ordered. All the Justices concur.