1. Where a proceeding is instituted in the Civil Court of Fulton County to dispossess the defendant as an intruder, the tender to the marshal of the counter-affidavit of the defendant is not an appearance in court by the defendant, and the trial court erred in refusing the defendant's demand for a trial by jury.
2. The Civil Court of Fulton County has jurisdiction to hear and determine the issues raised by an affidavit to eject an intruder and the counter-affidavit thereto.
3. As the case is being reversed, it is not necessary to pass on the question whether the verdict was authorized by the evidence. DECIDED OCTOBER 4, 1947. ADHERED TO ON REHEARING DECEMBER 20, 1947. Mrs. Helen J. Croswell and Mrs. Margaret A. Croswell instituted dispossessory proceedings against Norman Krasner, in the Civil Court of Fulton County, seeking to dispossess him as an intruder from certain premises owned by them. On June 28, 1946, the plaintiffs filed an intruder's warrant; on August 5, 1946, the defendant filed a counter-affidavit. On August 30, 1946, the defendant filed a demand for a trial by jury and further demanded that the jury be composed of twelve jurors. The defendant also filed a plea to the jurisdiction, general and special demurrers, and a motion to dismiss the affidavit. The trial judge denied the demand of the defendant for a trial by jury and overruled the defendant's plea to the jurisdiction, his demurrers, and his motion to dismiss the affidavit. The defendant excepted pendente lite to these rulings.
Without the intervention of a jury, the trial judge found for the plaintiffs. The defendant filed a motion for new trial, which was overruled on each and every ground thereof, and the defendant appealed to the Appellate Division of the Civil Court of Fulton County, which affirmed the judgment of the trial judge, and the defendant excepted. 1. The court erred in refusing the defendant's demand for a trial by jury. Section 39 of the act of 1913 (Ga. L. 1913, pp. 145, 165), creating the Municipal Court of *Page 374 Atlanta, provides in part: "The defendant in such action may file a written demand for a trial by jury on or before the day upon which he is required to appear in court in response to said proceeding and upon such defendant's failure thereupon to demand a trial by jury, he will be held to have waived the same."
In the case sub judice, the tender to the marshal of the counter-affidavit of the defendant was not an appearance in court by him, nor did the affidavit require him to make any appearance in court. The counter-affidavit merely arrested the proceedings, and the marshal turned both the affidavit of the owners and the affidavit of the defendant into court, where the issues between the parties could be tried and determined. The first appearance in court required of the defendant was when the issues made by the affidavit and counter-affidavit were called for trial, and the defendant filed his written demand for a trial by jury before he made any appearance in court. For these reasons, we think that the demand was timely and should have been granted.
2. It is not necessary to determine whether the defendant was entitled to a jury of twelve or a jury of six, since his demand for a trial by jury was refused, and he was not furnished either number of jurors to try the issues raised by the pleadings. Since there was no ruling made in the lower court as to the number of jurors to which the defendant was entitled, this issue need not be determined here.
3. The court did not err in overruling the defendant's plea to the jurisdiction. The Civil Court of Fulton County has jurisdiction to hear and determine the issues raised by an affidavit to eject an intruder, and a counter-affidavit thereto. Ga. L. 1925, pp. 370, 387; Roberts v. Mitchell, 166 Ga. 229 (1) (142 (S.E. 882).
4. As the case is being reversed, it is not necessary to pass on the question whether the verdict was authorized by the evidence.
5. The Appellate Division of the Civil Court of Fulton County erred in affirming the judgment of the trial judge, and in overruling the defendant's motion for new trial.
Judgment reversed. Gardner and Townsend, JJ., concur.
ON REHEARING