1. "The tenant may arrest the proceedings and prevent the removal of himself and his goods from the land by declaring on oath that his lease or term of rent has not expired, and that he is not holding possession of the premises over and beyond his term, or that the rent claimed is not due, or that he does not hold the premises, either by lease, or rent, or at will, or by sufferance, or otherwise, from the person who made the affidavit on which the warrant issued, or from anyone under whom he claims the premises, or from anyone claiming the premises under him: Provided, such tenant shall at the same time tender a bond with good security, payable to the landlord, for the payment of such sum, with costs, as may be recovered against him on the trial of the case." Code 61-303. "If the counter-affidavit and bond provided in the preceding section shall be made and delivered to the sheriff or deputy sheriff or constable, the tenant shall not be removed; but the officer shall return the proceedings to the next superior court of the county where the land lies, and the fact in issue shall be there tried by a jury." Code 61-304. The bond and security must be given before the tenant can resist the warrant by counter-affidavit. Cherry v. Ware, 63 Ga. 289 (1).
2. Wherever the counter-affidavit is so defective as not to make any issue, or when it has been dismissed by the court, the whole case goes out; by operation of law the warrant is withdrawn and returns into the hands of the sheriff or other officer to whom it is directed." Clarke v. Lee, 80 Ga. 617 (6 SE 170). Under these circumstances "[t]here is no case for the court to try." Id., p. 619. See also Habersham v. Eppinger & Russell, 61 Ga. 199; Murphey v. McGough, 105 Ga. 816 (3) (31 SE 757). The counter-affidavit here being defective because it was not accompanied by a bond, as required, prevents the counter-affidavit from presenting any issue, and there is no case before the court to be tried.
Under these circumstances the refusal of the trial judge to direct a verdict and to grant a judgment notwithstanding the verdict based thereon was not error; nor, for the same reason, was it error for the court to refuse to rule as a matter of law that appellant was entitled to the possession of the property or order the appellees to surrender the property to the appellant.
The ruling in City Council of Augusta v. Air Maintenance &c., Inc., 92 Ga. App. 584 (2) (89 SE2d 214)
does not support a ruling to the contrary. In that case, against two alleged tenants, only one filed a counter-affidavit and bond. As to him, this court held (in Division 2) that a verdict should have been directed and writ of possession granted. Code 61-305 as amended (Ga. L. 1947, p. 657). As to the other (in Division 1) the court applied the rule as applied in this case.
3. The trial court did err in submitting any issues to the jury, but the jury not having reached a verdict, and appellant not being entitled to a verdict, appellant was not harmed thereby.
4. There having been no notice of appeal filed by the appellees, their enumeration of errors accompanying their brief will not be considered.
The judgment is affirmed with direction that the dispossessory warrant be withdrawn and turned over to the officer to whom it was directed for further action thereon in accordance with the law.
Appellant instituted a dispossessory proceeding by affidavit and warrant, against the defendants. The defendants filed a plea of res adjudicata but gave no bond as required by Code 61-304, but the officer, to whom it was directed, apparently returned the dispossessory warrant and the counter-affidavit to the superior court. The defendants filed in the office of the clerk of the superior court, but did not have allowed by the court, an amendment in which it was alleged that upon the trial of the previous case it was determined and proven that the security deed under which appellant is claiming title is a forgery, praying for cancellation, that it be marked satisfied of record, that the cloud on the title be removed, and for general relief. The case was called for trial and plaintiff tendered, and had admitted into evidence a deed under power from a third party, as attorney in fact for the defendants, conveying the realty involved to the plaintiff. At this point the plaintiff moved for a directed verdict and for a directed verdict for a writ of possession on the ground that in the absence of a counter-affidavit or bond, they were entitled thereto, as there was no issue before the court. The court overruled the motion. After introduction of the testimony of the defendants, none of which touched sufficiently on the original plea of res adjudicata, but only on the alleged fraud in procuring the security deed (although there was much discussion between court and counsel as to the plea of res adjudicata), and at the close of the evidence, plaintiff moved to strike all the evidence in regard to the alleged forgery on the grounds that it was "irrelevant in this proceeding" and "it should have originally been raised in the foreclosure." The defendants moved the court to direct a verdict in favor of the plea of res adjudicata. The court overruled the defendants' motion and the plaintiff then moved the court to direct a verdict on the grounds "that there is no affidavit and bond, and therefore there is no issue and no defense, and we make a motion for directed verdict and for a directed writ of possession." These motions were overruled. The jury was unable to agree on a verdict and a mistrial was declared. Appellant filed a motion for judgment notwithstanding the verdict (mistrial) which was overruled by the trial judge. The enumerations of error were as follows:
2. The court erred in failing to grant appellant's motion for a writ of possession.
3. The court erred in failing to grant appellant's motion for judgment notwithstanding the mistrial.
4. The court erred in failing to rule as a matter of law that appellant was entitled to possession of the property occupied by the appellees.
5. The court erred in submitting any issues to the jury, and particularly the plea of res judicata filed by appellees.
6. The court erred in failing to order the appellees to surrender to the appellant the property described in the dispossessory warrant.
The appellees filed a paper styled in the case and titled "notice of appeal" but showing in the body that it was merely a notice that the appellees requested the clerk to include certain portions of the record on appeal, which were designated for omission by the appellant in its notice of appeal. This paper showed service upon the appellant. Appellees' brief has attached thereto an enumeration of errors complaining of various acts or failures to act on the part of the trial judge.