Music v. Barber , 99 Ga. 799 ( 1896 )

Simmons, Chiei Justiee.

It appears from the record, that the plaintiffs in error were tried in a magistrate’s court upon “an affidavit brought to eject [them] as intruders,” and that the trial resulted in .a verdict finding them guilty of forcible entry and detainer, upon which judgment was entered accordingly. Upon certiorari this verdict and judgment were affirmed by final judgment of the superior court.

The provisions of the code which authorize the summary ■ejection of intruders from lands, upon affidavit made for ■that purpose, will be found in section 4072, 'and the proceeding therein provided for is a very different one from the ■ proceeding in cases of forcible entry and detainer, provided for in section 4085. In a proceeding under the former .section, where 'there is a. contest on the part of the person sought to be ejected, the issue may be tried by the superior court (§4074), or by the county court (§295, Durden v. Clack, 94 Ga. 278); but a justice’s court has no jurisdiction to deal with the matter.

The case, it is true, was argued in this court by counsel for the plaintiffs in error (there being no appearance for the •defendants in error) as if it had originated under the latter section, but we must be governed by the record, from which, as we have seen, it appears that the case originated under the section first cited. Clearly a proceeding instituted under that section could not be made the basis of a trial before a justice of the peace and jury as in cases arising under the other section referred to. Such a trial is comm non judioe, and its result a nullity; and consequently, the judge of the superior court ought not to have entertained the petition for certiorari, but ought in the first instance to have refused to sanction the petition.

The judgment of the court below is therefore reversed. (See Pope v. Jones, 79 Ga. 488(2).)

Judgment reversed.