Lockett v. Usry , 28 Ga. 345 ( 1859 )

By the Court.

Lumpkin, J.,

delivering the opinion.

Was the affidavit of Lockett sufficient ?

When a landlord seeks to dispossess a tenant who holds over, under the act of 1827, (Cobb, 901,) the tenant to arrest, the proceeding, must make oath that ho does not hold the premises, either by lease or rent from the said person or from any one holding under him, by lease or rent. There is a blank in this affidavit where the name of the two Usrys should be inserted; and the singular pronoun him, is used instead of the plural pronoun them, provided it was the intention of the deponent so to fill up the affidavit.

It is argued that these omissions and mistakes wore mere oversights, and that the affidavit is good as it stands. Let us test this. Suppose Lockett was indicted for false-swearing ; and the assignment was, that he made oath that he did not hold the premises in dispute by rent or lease from the Nsrys, and the attorney for the State was to offer in evidence this affidavit to support the averment in the indictment. Would the jury find — could anybody say that Lockett intended so to swear ? Perhaps he refused designedly so to state. We may speculate and conjecture; but in a matter like this there must be certainty. The cases cited from the decisions of this court do not sustain the plaintiff in error. In Pherisfield vs. Carter, (2 Kelly, 143,) it was held that the omission of the word “ grant,” in one section of a statute, may be explained by other j>arts of the same statute, so as to supply the omitted word and give the act its intended effect. In 19 Geo. Rep. 33, this court, held, that an appeal affidavit in forma pauperis, was amendable. We will not cumber our reports by repeating the reasoning of the court to sustain these decisions. We do not intend to overrule or modify them. The proposition to amend, or rather to supply this affidavit with that which the party himself has not seen fit to put in, it stands, as we conceive, upon a totally different principle. It is neither more nor less than an offer to make an affidavit for the tenant, which possibly, he was unwilling to make for himself. Wo do not say it is so. The fact may be otherwise ; still, it does not weaken the force of the reasoning.

The court refused to permit the tenant to perfect his affidavit in terms of the act of 1827, under which this proceeding was instituted. And we think the court right in so ruling.

Plaintiffs then asked leave to amend their affidavit, so as to make it conform to the act of 1854, (Pamphlet, p. 55,) and they were allowed so to. do. As their proceeding was commenced under the act of .1827 and before the act of 1854 went into operation, this may not have been necessary on their part; still, as it imposed an . additional burden upon them, it constituted no good cause of exception in favor of Lockett. Be this as it may, he still refused to make oath in any other form than that required by the act of 1827. In other words, he would not swear, in addition to- the oath required by the act of 1827, that he did not hold under the vendor of the affiants.

The tenant adhering to this position, counsel for movants were permitted by leave of the court to take a verdict upon which judgment of ouster was awarded.

The position occupied in this court upon this branch of the case is this : That the act of 1854 was ex post facto as to Lockett, or took away from him a vested right which he had- — to file his affidavit under the law of 1827.

Wo do not deem this ground maintainable. Really this ceased to bo a contest on both sides under the old law and was superseded by one under the new. And suppose this adverse possession commenced at the expiration of the year 1853, did it not continue down to the time when these parties were litigating before the court ? And although the right to dispossess accrued eo instanti the lease terminated, still was it not íenewed every subsequent day thereafter ? And was not the owner entitled to all the rights and remedies which the law supplied, whenever he saw fit to move in the matter ?

If the legislature see fit to alter the law as to the manner of pleading either at law or in equity, or in any summary or anomalous proceeding, and the statute takes effect before the defence is made, the party must conform to the new rule. And ho cannot complain of having been deprived of a vested right. There is, we apprehend, no such thing as a vested, right in remedies. All the courts say is, that the legislature cannot so change the remedy as to render it nugatory. And that, perhaps, is the trouble in this case. By requiring the tenant to swear that he docs not hold under the vendor of the affiants, he cannot take the oath. If so he should surrender the premises without further contestation.

In conclusion, we would add, that the court was wrong in authorizing a verdict to be taken. The oath of the tenant being ruled out, there ivas no issue in court. Still,, the judgment of ouster was right — the execution of which may be stopped by the tenant at any time, upon condition that he will make oath under the act of 1854; not otherwise.