Roberts v. Mitchell

Hines, J.

1. The municipal court of Atlanta has jurisdiction of “proceedings against intruders and tenants holding over.” Acts 1925, pp. 370, 387; Harper v. Tomblin, 127 Ga. 390 (56 S. E. 433).

No. 6369. April 13, 1928.

2. The issue made by the defendant’s counter-affidavit to the proceeding to eject her as a tenant at sufferance, who failed to pay rent, was tenancy or no tenancy, and the question of the plaintiff’s title was not directly involved. Patrick v. Cobb, 122 Ga. 80 (49 S. E. 806) ; Hayes Hayes, 137 Ga. 362, 365 (73 S. E. 659); Crawford v. Crawford, 139 Ga. 394 (77 S. E. 557) ; Arnold v. Water Power & Mining Co., 147 Ga. 91 (92 8. E. 889).

3. The defensive allegations of the counter-affidavit, that the defendant hqd the legal title to the premises in dispute, and that she claimed ■ title to the same and the right to occupy the premises, no affirmative relief being sought, did not put her title directly in issue, but it was .only incidentally involved; and they did not make the case one respecting title to land, of which the municipal court of Atlanta did not have jurisdiction. Royston v. Royston, 21 Ga. 161 (9) ; Lowe v. Mann, 74 Ga. 387; Saffold v. Scottish American Mortgage Co., 98 Ga. 785 (27 S. E. 208) ; Huxford v. Southern Pine Co., 124 Ga. 181 (52 S. E. 439) ; Southern Title &c. Co. v. Lawshe, 137 Ga. 478 (73 S. E. 661); Elkins v. Merritt, 146 Ga. 647 (92 S. E. 51).

4. Proof of such allegations, nothing further appearing to the contrary, would require an adjudication in favor of the defendant on the merits. Durden v. Clack, 94 Ga. 278 (21 S. E. 521).

5. Applying the above rulings, the judgment of the municipal court of Atlanta in this case was not void for lack of jurisdiction of the subject-matter; and the judge of the superior court did not err in refusing to enjoin the enforcement of that judgment.

Judgment affirmed.

All the Justices concur. Bay & Bay, for plaintiff. Mitchell & Mitchell, for defendant.