Nash v. Elzey , 96 Ga. App. 273 ( 1957 )

Felton, C. J.

The plaintiff in error filed a rule in the Civil Court of Fulton County against the marshal and deputy marshal of that court praying that an eviction of the plaintiff in error under a dispossessory warrant issued by the Civil Court of Fulton County be declared null and void and set aside as being illegal, that if the landlord had been put in possession or had taken possession of the premises, he be ousted therefrom, and praying for such other and further relief as might seem proper under the facts and circumstances of the case. The officers moved that the rule be dismissed because the court lacked jurisdiction to grant the relief prayed for. The trial judge sustained this motion and dismissed the rule. On appeal to the Appellate Division of the Civil Court of Fulton County, the judgment of the trial judge was affirmed and the plaintiff in error excepts. Held:

It is not alleged that the entry and return made by the deputy marshal on the dispossessory warrant that he had evicted the plaintiff in error on a certain day was incorrect and there is no prayer asking that such entiy and return be changed, modified or corrected. The relief sought by the plaintiff in error was either equitable or extraordinary or was for a declaratory judgment and the Civil Court of Fulton County is without jurisdiction to grant such relief or to entertain an action in which such relief is sought (Ga. L. 1956, Sec. 5, p. 3277); therefore, the Appellate Division of the Civil Court of Fulton County did not err in affirming the judgment of the trial judge in dismissing the rule on proper motion.

Decided July 9, 1957 Rehearing denied July 25, 1957. G. Seals Aiken, Ben F. Sweet, for plaintiff in error. Cecil Hughes, Harold Sheats, Paul H. Anderson, W. Neal Baird, contra.

Judgment affirmed.

Quillian and Nichols, JJ., concur.