Carter v. Caverly

Stephens, J. (After stating the facts.) An affidavit as the basis of the issuance of a distress warrant may be made by the attorney at law of the landlord. Civil Code (1910), § 5390. Since affidavits that are the foundation of legal proceedings are amendable (Civil Code, § 5706), an affidavit which is the foundation for [90] the issuance of. a. distress warrant, made by an attorney at'law of the landlord and containing an allegation that the rent alleged do be due is due to the deponent, is'amendable by alleging that it is due to the landlord. . Such an affidavit being amendable, a replevy bond.given by the defendant, payable to the landlord instead of to the attorney, amounts to a waiver by the defendant of. the allegation in the affidavit that the rent is due to the deponent, and therefore treats the affidavit as if it had been properly amended so as to allege that the rent was due to the landlord. Also, sinee the replevy by a defendant of property levied on under a distress warrant converts the proceedings into an ordinary common-law action for rent, it is immaterial that the property levied on is levied on .in a proceeding by the attorney making the affidavit. Stephens v. McNaughton, 8 Ga. App. 42 (68 S. E. 459). It is therefore not error, in such a proceeding, to admit in evidence, over the objection of the defendant, the rent contract between the defendant and the landlord named in the affidavit, upon the ground that the contract was irrelevant as being between the defendant and one not the plaintiff in the case. •The evidence authorized the inference that the rent sued for was due and unpaid, and, the jury having found for the plaintiff,' the court did not err in overruling the defendant’s motion for a new trial. Judgment affirmed. Jenlcins, P. J., and Bell, J., concur. '