McBRIDE v. DISTINCTIVE FOOD ENTERTAINMENT CORP., 133 Ga. App. 424 (1974)

211 S.E.2d 28

49914.Court of Appeals of Georgia.SUBMITTED NOVEMBER 7, 1974.
DECIDED NOVEMBER 27, 1974.

STOLZ, Judge.

In this proceeding under Code Ann. Ch. 61-3 against a tenant holding over, the tenant’s failure to pay into the registry of the court, at the time he filed his counter-affidavit, rent due under the lease — rendered the answer defective, presenting no issue or case to be tried, and left the affidavit for the dispossessory warrant in effect unopposed, thereby entitling the plaintiff to an unqualified warrant. Mountain Hardwoods Pine v. Coosa River Sawmill Co., 132 Ga. App. 224 (207 S.E.2d 643). The said payment being a statutory condition precedent to the tenant’s arresting the proceedings and remaining in possession (Mountain Hardwoods Pine, supra, (3)), the tenant cannot rely on the plaintiff-landlord’s alleged previous waiver, by its course of conduct, of the due date of rental payments under the lease, to excuse his paying the rent into the registry of the court on the day after the filing of his answer.

The trial judge did not err in his judgment issuing a dispossessory warrant in favor of the plaintiff.

Judgment affirmed. Deen, P. J., and Marshall, J., concur.

SUBMITTED NOVEMBER, 7, 1974 — DECIDED NOVEMBER 27, 1974.
Dispossessory warrant. Fulton Civil Court. Before Judge Webb.

J. L. Jordan, for appellant.

Leon S. Epstein, William Hall, H. A. Stephens, Jr., for appellee.