Foy v. Johnston ( 1951 )

Felton, J.,

concurring specially. I do not agree with the majority that the filing of a counter-affidavit to a distress warrant waives jurisdictional questions for the reason that the only provision for arresting distress proceedings is the filing of a counter-affidavit alleging that the sum distrained for or a part thereof is not due. Not until this is done do the proceedings become a case in court wherein demurrers or special pleas can be filed. There can be no waiver of jursdiction in the absence of a choice which could result in a waiver. I concur in the judgment because the effect of the defendant’s motion was a plea to the jurisdiction which failed to allege that the defendant did not own property in Dougherty County. See Kimball Co. v. Rogers, 17 Ga. App. 562 (87 S. E. 848).