Paige v. Dodson

McCay, Judge. The Code, section 4000, requires the counter-affidavit to an intruder’s warrant to state, “ that he does in good faith claim a legal right to the possession.” The words of this affidavit are, “that she claims the bona fide legal right to the possession.” The Court dismissed the affidavit, because it did not conform to the statute. We think this was too rigid an adherance to the letter of the law. Very clearly this was a mere clerical error; a mere misplacement of the word “the.” Had the affidavit said “she claims, bona fide, the legal right,” “or she claims, the legal right, bona fide,” it would have complied literally with the law. This is a very hard law on defendants. The sheriff appears at one’s door with an intruder’s warrant. His duty is to turn the defendant out “ at the earliest practicable day,” unless the counter-affidavit is filed. It is perhaps a long way to a lawyer; the sheriff is a competent officer to administer the oath; one is written, sworn to and accepted, and the papers returned. The affidavit is bunglingly drawn — a word is misplaced — “the” is put after “ bona fide” instead of before. The affidavit cannot be amended: 20 Georgia, 105; a second one cannot be put in: 36 Georgia, 477; and the defendant loses his possession for a misplacement of one word in his affidavit. We doubt if this Act ought to be construed strictly as to the defendant. It is a harsh, speedy process that should be strictly complied with by the plaintiff; but in my judgment, whilst the affidavit of the defendant should in substance comply with the Act, a literal compliance is not necessary. The case before us is evidently a mere error in the use of words, the intent [225] was to comply, and we think the substance of the statute has been conformed to. Very evidently the meaning is “bona fide claim;” bona fide possession is nonsense. The affidavit ought to be read, “does bona fide claim the legal right.” Let the plaintiff tender an issue on it, as thus read. Judgment reversed.