Roberts v. Mitchell

Hines, J.

1. The municipal court of Atlanta has jurisdiction of “proceedings against intruders and tenants holding over.” Acts 1925, pp. 370, 387; Harper v. Tomblin, 127 Ga. 390 ( 56 S. E. 433 ).

*230 No. 6369. April 13, 1928.

2. The issue made by the defendant’s counter-affidavit to the proceeding to eject her as a tenant at sufferance, who failed to pay rent, was tenancy or no tenancy, and the question of the plaintiff’s title was not directly involved. Patrick v. Cobb, 122 Ga. 80 ( 49 S. E. 806 ) ; Hayes Hayes, 137 Ga. 362, 365 ( 73 S. E. 659 ); Crawford v. Crawford, 139 Ga. 394 ( 77 S. E. 557 ) ; Arnold v. Water Power & Mining Co., 147 Ga. 91 (92 8. E. 889).

3. The defensive allegations of the counter-affidavit, that the defendant hqd the legal title to the premises in dispute, and that she claimed ■ title to the same and the right to occupy the premises, no affirmative relief being sought, did not put her title directly in issue, but it was .only incidentally involved; and they did not make the case one respecting title to land, of which the municipal court of Atlanta did not have jurisdiction. Royston v. Royston, 21 Ga. 161 (9) ; Lowe v. Mann, 74 Ga. 387 ; Saffold v. Scottish American Mortgage Co., 98 Ga. 785 ( 27 S. E. 208 ) ; Huxford v. Southern Pine Co., 124 Ga. 181 ( 52 S. E. 439 ) ; Southern Title &c. Co. v. Lawshe, 137 Ga. 478 ( 73 S. E. 661 ); Elkins v. Merritt, 146 Ga. 647 ( 92 S. E. 51 ).

4. Proof of such allegations, nothing further appearing to the contrary, would require an adjudication in favor of the defendant on the merits. Durden v. Clack, 94 Ga. 278 ( 21 S. E. 521 ).

5. Applying the above rulings, the judgment of the municipal court of Atlanta in this case was not void for lack of jurisdiction of the subject-matter; and the judge of the superior court did not err in refusing to enjoin the enforcement of that judgment.

Judgment affirmed.

All the Justices concur.

Bay & Bay, for plaintiff. Mitchell & Mitchell, for defendant.