Johnson v. United Brotherhood of Carpenters Local No. 256 , 94 Ga. App. 113 ( 1956 )

Quillian, J.

When a distress warrant has been issued, the only method by which it may be arrested is for the party distrained to file a counter-affidavit alleging that the sum, or some part thereof, distrained for is not due. Code § 61-404. It is unnecessary to give an eventual condemnation money bond if the tenant does not desire to retain possession of the property. Speed Oil Co. v. Aldredge, 192 Ga. 285 (1b) (15 S. E. 2d 214). In the case at bar, the tenant having failed to file a counter-affidavit, the trial court had no jurisdiction to decide any issues, whether on motion to dismiss the levy or otherwise. Smith v. Green, 34 Ga. 178; Kennedy v. Miller, 179 Ga. 234 (175 S. E. 588); Northside Farmers Market v. Wright, 78 Ga. App. 622 (52 S. E. 2d 34); Arnold v. Selman, 83 Ga. App. 150 (62 S. E. 2d 919). The trial judge did not err in denying the motion to dismiss the levy. While a void distress warrant cannot legally proceed against the defendant’s property, the question of the validity of the distress warrant issued in this case is not now before the court.

Judgment affirmed.

Felton, C. J., and Nichols, J., concur.