Burdock v

Miller, 21 Ga. 368, 1857 Ga. LEXIS 68 (1857); Baker v. Downing, 69 Ga. 746, 1882 Ga. LEXIS 329 (1882). If one joint plaintiff should not recover, none may. — Where a joint action for land is brought by several persons, and the evidence shows that one of them is not entitled to recover, there can be no recovery at all. The rule in such case is the same whether the action be in the statutory or fictitious form. Paine v. Thomas, 228 Ga. 519, 186 S.E.2d 737, 1972 Ga. LEXIS 824 (1972). Plaintiff who purchased realty at executor’s private sale and who received the executor’s authorization to take possession is entitled to eject from possession an earlier purchaser who has failed to make payments, even if the testator did not confer on the executors the right to sell at private sale. Bagley v. Stephens, 78 Ga. 304, 2 S.E. 304, 2 S.E. 545, 1886 Ga. LEXIS 234 (1886). Procedure Plaintiff’s affidavit may be made before county judge. — Affidavit may be made before any officer authorized to administer an oath, thus differing from the affidavit which is the foundation of a proceeding against a tenant, which must be taken before a judge of the superior court or a justice of the peace. (See O.C.G.A. § 44-7-50.) Consequently, a county judge can administer the oath in this proceeding and then determine the issue made by the defendant’s counter-affidavit. Griswold v. Rutherford, 109 Ga. 398, 34 S.E. 602, 1899 Ga. LEXIS 666 (1899); Rigell v. Sir- 149 Procedure (Cont’d) mans, 123 Ga. 455, 51 S.E. 381, 1905 Ga. LEXIS 492 (1905). Attorneys at law. — An attorney at law is not such an agent, without special appointment, as would authorize the attorney to make an affidavit under the provisions of O.C.G.A. § 44-11-30. Montgomery v. Walker, 41 Ga. 681, 1871 Ga. LEXIS 166 (1871). Defendant may take an oath to the counteraffidavit before the sheriff who comes to turn defendant out of possession. Simpson v. Wall, 41 Ga. 105, 1870 Ga. LEXIS 37 (1870). File any time before eviction. — The defendant must make and file a counteraffidavit before actual eviction, but it may be made at any time before such eviction. Simpson v. Wall, 41 Ga. 105, 1870 Ga. LEXIS 37 (1870); Montgomery v. Walker, 41 Ga. 681, 1871 Ga. LEXIS 166 (1871); Sheats v. Blair, 7 Ga. App. 272, 66 S.E. 812, 1910 Ga. App. LEXIS 238 (1910). Sheriff will dispossess unless counteraffidavit shown. — When an affidavit is made for the removal of an intruder, as provided by O.C.G.A. § 44-11-30, it is the duty of the sheriff, at the earliest practicable day, to exhibit the affidavit to the person described therein, as being in possession of the land, and to turn such person out of the possession thereof, unless the person so in possession shall at once tender to the sheriff the counteraffidavit prescribed in O.C.G.A. § 44-11-30. Simpson v. Wall, 41 Ga. 105, 1870 Ga. LEXIS 37 (1870). Defective counteraffidavit gives the defendant no standing in court, it cannot be amended, and a second one cannot be made. Hass v. Gardner, 36 Ga. 477, 1867 Ga. LEXIS 71 (1867); Paige v. Dodson, 46 Ga. 223, 1872 Ga. LEXIS 36 (1872); Yancey v. Karwisch, 129 Ga. 788, 59 S.E. 777, 1907 Ga. LEXIS 584 (1907); Stephens v. Mathis, 142 Ga. 117, 82 S.E. 520, 1914 Ga. LEXIS 611 (1914). Clerical error not defective. — A defendant’s affidavit that defendant “claims the bona fide legal right to possession” of the premises complies with O.C.G.A. § 44-11-30; placing the word “the” before the words “bona fide” is an 44-11-30 evident clerical mistake, the real meaning being that defendant “claims the bona fide, the legal right to the possession.” Paige v. Dodson, 46 Ga. 223, 1872 Ga. LEXIS 36 (1872). Husband’s counteraffidavit may state he is wife’s agent. — A husband may make a counteraffidavit that he holds possession as agent of his wife and thus make an issue for trial. Jackson v. Dickson, 73 Ga. 126, 1884 Ga. LEXIS 54 (1884). It is error to dismiss counter-affidavit properly made because of nonappearance of defendant at trial. Yancey v. Karwisch, 129 Ga. 788, 59 S.E. 777, 1907 Ga. LEXIS 584 (1907). If counter-affidavit shows bad faith, directed verdict proper. — Where the action is brought under O.C.G.A. § 44-1130, as a summary action to eject intruders, the sole question in such a case is whether or not the defendant in good faith claims the right to occupy the premises in question; and when the counter-affidavit taken with the admissions of the defendant made on cross-examination and under oath show that no issuable defense is made, or that the defendant does not in good faith claim the right to possession of the disputed premises a finding in favor of the plaintiffs is demanded and it is proper for the trial judge to direct a verdict for the plaintiffs. Krasner v. Crosswell, 80 Ga. App. 134, 55 S.E.2d 381, 1949 Ga. App. LEXIS 790 (1949). County court has jurisdiction to try applications for eviction of intruders, and it would be no ground to dismiss a proceeding for this purpose that the evidence showed the plaintiff’s remedy was by ejectment; but such evidence would require an adjudication in favor of the defendant on the merits. Durden v. Clack, 94 Ga. 278, 21 S.E. 521, 1894 Ga. LEXIS 65 (1894). Equity court may have final adjudication. — When in the course of proceedings under O.C.G.A. § 44-11-30 equitable jurisdiction arises, a court of equity may hold the case for final adjudication. Wyley v. Whitely, 38 Ga. 605, 1869 Ga. LEXIS 281 (1869). No trial by justice of the peace. — A proceeding instituted under O.C.G.A. 150 § 44-11-30 cannot be made the basis of a trial before a justice of the peace and a jury. Such a trial is coram non judice, and its result a nullity. Music v. Barber, 99 Ga. 799, 27 S.E. 164, 1896 Ga. LEXIS 524 (1896). No necessity of process and return. — Under O.C.G.A. § 44-11-30, no process or return of service is required. Hill v. Security Loan & Abstract Co., 35 Ga. App. 93, 132 S.E. 107, 1926 Ga. App. LEXIS 567 (1926). Bona fide claim to possession good defense. — That the alleged intruder claims the legal right to possession of the land in good faith is a legal defense against eviction under such process. Hill v. Security Loan & Abstract Co., 35 Ga. 44-11-32 App. 93, 132 S.E. 107, 1926 Ga. App. LEXIS 567 (1926). Where evidence is conflicting, verdict against defendant should not be directed. Stilwell v. Watkins, 135 Ga. 149, 68 S.E. 1114, 1910 Ga. LEXIS 449 (1910). Where the evidence is conflicting, the plaintiff should not be nonsuited. Coffey v. Pace, 106 Ga. 293, 32 S.E. 115, 1898 Ga. LEXIS 83 (1898). Certiorari is proper remedy where dissatisfied with judgment. — The proper procedure by a party dissatisfied with a judgment in the proceeding is by certiorari, not by appeal. Rigell v. Sirmans, 123 Ga. 455, 51 S.E. 381, 1905 Ga. LEXIS 492 (1905).