Clark v. McGinley

1. Although the affidavit of an executor and the warrant to remove a tenant at sufferance who holds over after demand allege an offer to rent to him at a certain monthly rate and his refusal to enter into a contract of rental, and his failure and refusal to pay any rent, the legal ground of the warrant is not the non-payment of rent, but the retention of possession by a tenant at sufferance after demand; and a counter-affidavit attempting to set up alleged claims against the executor's testatrix is no defense to the proceeding. Mothershead v. DeGive 82 Ga. 193 (8 S.E. 62). All of the cases cited and relied on by the plaintiff in error deal with dispossessory warrants sued out by landlords against tenants because of failure to pay the rent provided for in the contract between the parties, and clearly such cases do not apply to the case at bar.

2. The court did not err in striking the counter-affidavit because there was no issuable defense contained therein.

Judgment affirmed. Sutton, P. J., and Felton, J.,concur.

DECIDED NOVEMBER 10, 1944.