DocketNumber: 32587.
Citation Numbers: 55 S.E.2d 156, 80 Ga. App. 47
Judges: SUTTON, C. J.
Filed Date: 9/10/1949
Status: Precedential
Modified Date: 1/12/2023
1. It is not necessary that an agent making an affidavit for the issuance of a dispossessory warrant be a duly licensed attorney at law.
2. (a) Where it is alleged in the affidavit for the issuance of a dispossessory warrant that the tenant is holding over and beyond his term and that he has failed to pay the rent when due, and the defendant in his counter-affidavit does not deny that he is holding over and beyond his term, this ground of the affidavit will be treated as admitted by the defendant, and this in itself is sufficient to authorize the eviction of the tenant from the premises.
(b) A plea of tender of rent which fails to show what or how much was tendered, or when such tender was made or refused, or that the tender was continuing, or that there was a present readiness, ability, and willingness to pay the rent, or that the rent admitted to be due had been paid into court, is insufficient.
(c) The trial court did not err in sustaining the plaintiff's demurrer to the counter-affidavit and in dismissing the same, as no defense was set up by the counter-affidavit.
1. The contention of the plaintiff in error in his brief in this court, that the affidavit made by the agent and officer of the plaintiff corporation was not sufficient to authorize the issuance of the dispossessory warrant because such agent was not a duly-licensed attorney at law, cannot be sustained. This question has been decided adversely to the contention of the plaintiff in error by the Supreme Court in Connor v. O'Brien,
2. Code § 61-301 provides, among other things, that a tenant may be dispossessed where: (1) he "shall hold possession of lands or tenements over and beyond the term for which the same were rented or leased to him," or (2) "shall fail to pay the rent when the same shall become due." The affidavit upon which the dispossessory warrant was issued in this case alleged both of these grounds, that is, that the tenant was holding over and beyond his term, and that he had failed to pay the rent when it was due. The defendant in his counter-affidavit did not deny that he was holding over and beyond his term, and consequently this ground of the affidavit upon which the warrant was based will be treated as admitted by the defendant. Graf v. Shiver,
The defendant in the counter-affidavit merely alleges "that he has not failed to pay rents as alleged in said eviction affidavit, but to the contrary, shows that he has tendered payment in full of any rents due to said Anchor Rome Mills Inc." As pointed out by the plaintiff in its demurrer, the counter-affidavit does not allege or show what or how much was tendered, or when such tender was made or refused, or that the tender was continuing, or that there was a present readiness, ability, and willingness to pay the rent, or that the rent admitted to be due had been paid into court. The plea of tender with respect to the rent was insufficient. See Cothrans v.Mitchell,
The trial court did not err in sustaining the plaintiff's demurrer to the counter-affidavit and in dismissing the same, as no defense was set up by the counter-affidavit.
Judgment affirmed. Felton and Worrill, JJ., concur. *Page 50