Opinion
36804.
DECIDED SEPTEMBER 19, 1957.
Action on account. Before Judge Lilly. Thomas Superior Court. May 1, 1957.
Merlin H. Holland, for plaintiff in error.
Marcus B. Calhoun, Forester Calhoun, contra.
Under the pleadings in the instant case the court ruled correctly in each and every instance and no reversible error of law appears, except as set out in division 3 of this opinion. The court erred in refusing to allow a duly verified amendment to the defendant's answer.
DECIDED SEPTEMBER 19, 1957.
Sing Motor Implement, Inc., brought suit against W. B. Cone. The original petition alleged that the defendant was indebted to the plaintiff in the sum of $1,317.00 on open account, and attached an itemized verified copy of the account. In paragraph 3 of the petition the plaintiff alleged that demand had been made on the defendant for payment of the account and that the defendant failed and refused to pay the same. At the end of the statement of the account, which was made a part of the original petition, the following appeared: "I certify that the above statement on W. B. Cone's account, with a balance of $1317 outstanding and past due, is correct, according to the records at Sing Motor Impl. Inc. Dated this 14th day of September 1956." After demurrers were filed the petition was amended, changing the amount of the indebtedness to $1,104.01. This was verified in the following language: "Before me, the undersigned officer duly authorized to administer oaths, personally appeared Harry M. Pilcher, who being duly sworn deposes and says that he is president of Sing Motor Implement, Inc., and as such is familiar with the books and records of said corporation. Deponent states that the foregoing itemized statement of the account of W. B. Cone with Sing Motor Implement, Inc., is true and correct." This was signed by Harry M. Pilcher before a notary. There was also an affidavit that Harry M. Pilcher was president of Sing Motor Implement, Inc.
The petition was amended a second time by changing the amount of indebtedness to $1,283.51, and changing the items listed somewhat. The account was verified substantially in the same manner as were the two previous statements of the account. The defendant demurred, and renewed demurrers each time the petition was amended. The defendant's demurrers were overruled. Paragraph 2 of the bill of exceptions reads as follows: "When the case was called in its order for trial on May 1, 1957, the defendant moved for a continuance on the ground of surprise because of the two amendments to plaintiff's petition; and defendant's attorney of record, Merlin H. Holland, then and there stated in his place as such attorney that he was surprised by plaintiff's said amendments, and that he and the defendant were less prepared for trial by reason of the said amendments than they would have been if such amendments had not been made, also that such surprise was not then claimed for the purpose of delay. By way of stating how the defendant and his counsel were then less ready for trial by reason of said amendments, the defendant's said attorney in his said statement to the court pointed out the nature and length of said amendments, the number of items in the amended statement of account, and further stated in his place that neither he nor the defendant had had time and opportunity to examine the several items in the new statement of plaintiff's alleged account, nor to determine what books, records, and documents the defendant might need to require the plaintiff to produce for use as evidence.
"The court then and there overruled and denied the said motion for a continuance based, as aforesaid, on the ground of surprise; to which said ruling and judgment of the court, the defendant then and there excepted, now excepts, and assigns the same as error."
The defendant answered the suit and later amended the answer. The amendment to the original answer was not allowed.
It is to the judgments overruling the demurrers, the motion for a continuance and the amendment to the defendant's answer that the case is before this court for review.
1. The defendant (plaintiff in error here) assigns error on the refusal of the trial court to sustain the demurrer to the verification of the account attached to the original petition. Code § 81-401 regarding verification of petitions reads: "In all cases where the plaintiff shall file a petition with an affidavit attached that the facts stated in the petition are true to the best of his knowledge and belief, the defendant shall in like manner verify any plea or answer. If the defendant is a corporation, such affidavit may be made by the president, vice-president, superintendent, or any officer or agent who knows, or whose official duty is to know, about the matters set out in the answer." Code § 81-109 reads: "No petition need be verified unless it seeks extraordinary equitable relief or remedy." Omission to verify is amendable. See Popwell v. Taylor, 33 Ga. App. 429 ( 126 S.E. 857) and Simmons v. J. A. Jones Construction Co., 72 Ga. App. 517 ( 34 S.E.2d 300). Redwine Bros. v. Jarrell, 14 Ga. App. 294 (2) ( 80 S.E. 728) states: "When it appears that no oath was in fact administered to one whose name is subscribed to a paper which purports to be his affidavit, or that he signed it without consciously assuming the obligation of an oath, the paper can not be regarded as an affidavit." Such is not the basis of the case at bar. In Jackson v. State, 34 Ga. App. 519 ( 130 S.E. 360), cited by counsel for the defendant, it appears that no oath was actually administered to the affiant. Such is not true in the instant case. The facts in the following cases differ from the facts in the instant case and are not cause for reversal: Bennett v. Simmons, 30 Ga. App. 529, 531 ( 118 S.E. 493), Niemeyer v. Dougan, 31 Ga. App. 99 (1) ( 119 S.E. 544), Story v. First Nat. Bank of Thomson, 34 Ga. App. 27 ( 128 S.E. 12), and Brothers Sisters of Charity v. Renfroe, 57 Ga. App. 646 (1) ( 196 S.E. 135). The record in the instant case shows that the demurrers were renewed. This assignment of error is not meritorious.
2. Counsel for the defendant contends that counsel did not have sufficient time in which to prepare his case for trial after the amendments of the plaintiff were filed. The trial court allowed the defendant eleven additional days in which to prepare the case and get ready for trial. Moreover, it appears that the amendments were only an amplification of the original petition. This court stated in A. C. L. R. Co. v. Tifton Produce Co., 56 Ga. App. 776 (2) ( 194 S.E. 72): "Where an amendment was but a specification and amplification of the original contention as set out in the original pleading, there was no abuse of the discretion of the judge in overruling the motion to continue because of surprise." The court did not abuse its discretion in this respect and this assignment of error is not meritorious.
3. It is contended that the court erred in refusing to allow a duly verified amendment to the defendant's answer. It appears that the amendment set out a counter-claim and cross-action. The court's ruling was erroneous in this respect. See Simon v. Myers Marcus, 68 Ga. 74; Wynn v. Wynn, 109 Ga. 255 ( 34 S.E. 341); Bland v. Swainsboro Fertilizer Co., 20 Ga. App. 154 (1) ( 92 S.E. 760); and Rozear v. J. G. McKenzie Lumber Co., 60 Ga. App. 662, 663 ( 4 S.E.2d 718). The court's ruling was in conflict with the provisions of Code § 81-1301. This special ground shows reversible error.
4. The remaining objection is to the verdict and final judgment generally. No motion for new trial was made, and no brief of evidence is shown in the record. This objection is not tenable and is not meritorious.
Judgment reversed. Townsend and Carlisle, JJ., concur.