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PERRY v. SMITH et al.
Dispossessory warrant. Before Judge Houston. Gwinnett Superior Court. September 16, 1954.
1. There is no merit in the motion to dismiss the bill of exceptions for failure to perfect service. On the same day that the bill of exceptions was certified, the attorney of record for the defendants in error signed an acknowledgment of service as follows: "Due and legal service of the within bill of exceptions acknowledge copy received, all other and further service and notice waived; the undersigned Ray Merritt, counsel of record for the defendant in error in said case hereby waives, notice of presentation of the bill of exceptions, and the privilege and opportunity to be heard on the question of whether or not the bill of exceptions is correct and complete and hereby approves the foregoing bill of exceptions as correct and complete as to the facts therein stated." This constituted an express acknowledgment of service of the bill of exceptions as provided by Code 6-911, 6-912. Carnes v. Pittman, 209 Ga. 639 (1) (74 S. E. 2d 852).
2. Upon the trial of the case the defendants made a motion to dismiss on the ground that the plaintiff's affidavit did not describe the property from which the plaintiff sought to evict the defendants so that the executing officer could locate the property. The plaintiff then sought to amend her original affidavit so as to cure this defect. This amendment was disallowed by the trial judge, and the defendants' motion to dismiss the proceeding was sustained. The defendant in error relies upon Orme v. King, 60 Ga. 523, and North v. Tolbert, 80 Ga. App. 110 (55 S. E. 2d 661). In the North case, while the court quoted from the Orme case, to the effect that an affidavit to eject an intruder is not amendable, since not expressly provided by law (as it then existed), the case was actually not decided on that ground. The Orme case was decided in 1878 when the Code of 1873 was in effect in Georgia, and 3504 of that Code read as follows: "An affidavit which is the foundation of a legal proceeding cannot be amended except [as] expressly provided for by law." In the Code of 1895 this section ( 5122) was changed to read as the present Code 81-1203 now reads: "All affidavits for the foreclosure of liens, including mortgages, and all affidavits that are the foundation of legal proceedings and all counter-affidavits shall be amendable to the same extent as ordinary petitions, and with only the restrictions, limitations, and consequences obtaining in the case of ordinary petitions and pleas." A dispossessory warrant and affidavit may now be amended by adding to and making more full the description of the property from which it is sought to evict the defendant. Code 81-1203, supra; Pitman v. McKeon, 19 Ga. App. 716 (1) (91 S. E. 1065); Akers v. Kinney, 73 Ga. App. 456 (36 S. E. 2d 844); Wilensky v. Agoos, 74 Ga. App. 688 (41 S. E. 2d 182). It is thus seen that the law as to amending an affidavit on which a dispossessory warrant is based as stated in the Orme and North cases, supra, is not now in force, and the cases last cited as to the right to amend must be followed. Accordingly, the trial court erred in disallowing the plaintiff's amendment to her affidavit and in thereafter sustaining the defendants' motion to dismiss.
Mrs. Ivylyn O. Perry brought an action by dispossessory warrant to exempt the defendants, Sam and Ethel Smith, from property alleged to be owned by the plaintiff. The plaintiff's affidavit read as follows: "State of Georgia, Gwinnett County. In person before me, E. H. Martin, J. P. for the 550 District G. M., came Ivylyn O. Perry who on oath, says that she is the owner of a house and two lots and who on oath, says that Sam and Ethel Smith are in possession of a house and premises situated in Buford, Ga. in said State and county, the property of Ivylyn O. Perry. That said tenant fails to pay the rent now due on said house and premises or that the said tenant is holding said house and premises over and beyond the term for which the same were rented to him, that the said owner desires and has demanded possession of said house and premises, and the same has been refused by the said Sam and Ethel Smith. And deponent makes this affidavit that a warrant may issue for the removal of said tenant from said house and premises. Sworn and subscribed before me, this 12 day of October 1953." The affidavit was signed by the plaintiff and properly witnessed.
The defendants were served and filed their counter-affidavit and the proper bond. When the case came on for trial on September 16, 1954, the defendants made an oral motion to dismiss the proceedings upon the ground that the plaintiff's affidavit did not describe the property sufficiently to enable the executing officer to identify what property was sought to be repossessed. The plaintiff then sought to file an amendment to her original affidavit by adding sufficient description to enable the executing officer to identify the property sought to be repossessed. This amendment was disallowed by the trial judge, and the defendants' oral motion to dismiss was sustained. The plaintiff excepted to this action as contrary to law.
In this court the defendant in error made a motion to dismiss the bill of exceptions on the ground that the service of the bill of exceptions was not in accordance with Code 6-911, and 6-912.
J. Ray Merritt, contra.
Ed Quillian, for plaintiff in error.
Saturday May 23 03:09 EDT

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