Collins v. Rutherford

Warner, C. J. 1. The first ground of error assigned to the ruling of the Court below is, that a Justice of the Inferior Court had the authority, under the law, to administer the oath required to eject an intruder upon land in this State. By the Act of 1854, a Justice of the Inferior Court is expressly authorized to administer an oath in all cases where, by law, an oath is required to be taken. See Acts 1853-4, page 29. In our judgment, this power and authority to administer oaths by a Justice of the Inferior Court had not been taken from them by any subsequent legislative enactment at the time the affidavit in the record was made. The objection to the affidavit was therefore properly overruled. 2. The second ground of error is, that the Court dismissed the counter-affidavit, on the ground that the party making it did not state therein that he did, in good faith, claim a legal right to the possession of the land. In Poulain vs. Sellers, 20 Ga. R., 228, this Court held, that it was error for the [31] Court to charge the jury “ that the question was whether the defendant, bona fide, claimed the right of possession ;” this Court holding and deciding, in that case, that “ the defendant is required, under the statute, to swear and shew that he, bona fide, claims the legal right to the possession. The word legal is omitted in the Court’s charge; and yet, it was evidently designed to be significant in this Act.” The counter-affidavit not stating that the party making it did, bona fide, claim a legal right to the possession of the land, was properly dismissed by the Court. 3. The third ground of error assigned is, that the Court refused the motion to file a new affidavit, then at the Court, in accordance with the requirements of the statute. This Act was intended to provide a summary process for the ejection of intruders who squat upon other people’s land, without any legal right to do so, and it is made the duty of the sheriff, under the act authorizing this proceeding, to turn the intruder out of possession, unless he shall, at once, tender to the sheriff a counter-affidavit, stating that he does, in good faith, claim a, legal right to the possession of the land. If the intruder can be allowed to make a defective affidavit, and thereby retain ^possession of the land, and, when it is objected to, make another and still retain possession, the very object and intent of the Act would be defeated. The Act prescribes the terms by which he can retain possession, and the sheriff is authorized to administer the oath required by it, for his benefit and protection, if, indeed, he does, in good faith, claim a legal right to the possession. In our judgment, there was no error, in the refusal of the Court below to allow a new affidavit to be made. \ Let the judgment of the Court below be affirmed.