Moran v. Mid-State Homes, Inc.

171 Ga. App. 618 (1984) 320 S.E.2d 625

MORAN et al.
v.
MID-STATE HOMES, INC.

68614.

Court of Appeals of Georgia.

Decided July 12, 1984.

Roger B. Lane, C. Darrell Gossett, for appellants.

Ivan H. Nathan, for appellee.

BANKE, Presiding Judge.

The appellee, Mid-State Homes, Inc., initiated dispossessory proceedings against appellants, Phillip and Alberta Moran; and appellants thereafter filed a timely answer and counterclaim pursuant to OCGA § 44-7-51 (b). The trial court subsequently denied a motion for summary judgment filed by the appellee but ordered appellants to pay $3,378 in purported arrearages into the registry of the court by a specified date. Upon appellants' failure to make the payment, the trial court awarded appellee possession of the premises and dismissed appellants' answer and counterclaim. Appellants appeal the dismissal of their answer and counterclaim. Held:

A tenant has an unqualified right to submit an answer and a counterclaim in all dispossessory proceedings. Failure to pay rent into the registry of the court pursuant to OCGA § 44-7-54 affects only the right to possession of the premises, not the right to pursue a counterclaim. Accord Mountain Hardwoods & Pine, Inc. v. Coosa River Sawmill Co., 233 Ga. 414 (211 SE2d 712) (1975); Jelks v. World of Realty, Inc., 153 Ga. App. 720 (3) (266 SE2d 357) (1980). Thus, while the trial court did not err in awarding possession to appellees, the court did err in dismissing the counterclaim.

Judgment affirmed in part and reversed in part. Pope and Benham, JJ., concur.