Stephens v. Hooks , 122 Ga. 423 ( 1905 )

Cobb, J.

The distress warrant was proceeding in the name of J. K. Stephens, the words “ as agent,” etc., being merely descriptive of the person. Maxwell v. Collier, 115 Ga. 304. In the case just cited the affidavit was regular in all respects, it averring that the affiant was the agent of the landlord and that the defendant was indebted to the landlord. The warrant issued in the name of the affiant as agent for the landlord ; and it was held that in a claim case the levy should have been dismissed for this reason, as the warrant did not follow the affidavit. In the present cáse the affidavit is ambiguous as to the person to whom the rent is owing. The word “ him ” may refer either to the affiant or to E. L. Stephens. The warrant described the person in whose favor it was issued as “ J. K. Stephens, agent for E. L. Stephens.” Hence, under the ruling above referred to, the warrant was proceeding in the name of J. K. Stephens, and not in the name of E. L. Stephens; and this is true without reference to whether the affidavit be construed as averring indebtedness to J. K. Stephens or to E. L. Stephens. Treating the proceeding (as it must be treated) as one in the name and behalf of J. K. Stephens individually, there was no evidence whatever to authorize a finding in his favor that any rent was due him. The verdict for the defendant was demanded by the evidence, and there was no error in overruling the motion for a new trial.

Judgment affirmed.

All the Justices concur.