Opinion
40037.
DECIDED JUNE 25, 1963. REHEARING DENIED JULY 11, 1963.
Action on notes, etc. Clayton Superior Court. Before Judge Banke.
Oze R. Horton, for plaintiff in error.
Lipshutz, Macey, Zusmann Sikes, John M. Sikes, Jr., Robert A. Elsner, contra.
1. Where plaintiff's original petition alleged that the defendant was indebted to the plaintiff in the amount of $338.50, as shown by reference to a bill of particulars attached, and where the bill of particulars referred to five notes aggregating the sum sued for, and where the notes were not themselves attached to the petition, and where the defendant demurred to the original petition and to the exhibit on the ground that there was nowhere therein set out "copies of the notes upon which the action is based and which are written instruments, and he prays . . . that the plaintiff be required to attach copies of such notes to the petition as exhibits or the petition be dismissed," and where thereafter the plaintiff amended the petition to meet this demurrer and attached copies of the promissory notes sued on, the court did not err in allowing the amendment over the objection that the amendment set forth a new and distinct cause of action.
2. The defendant's unsworn answer merely denied the allegations of the plaintiff's petition with respect to the indebtedness sued upon. This did not constitute an issuable defense to the suit upon promissory notes. Bowden v. Davison-Paxon Co., 71 Ga. App. 379, 382 (2) ( 31 S.E.2d 83); Johnson v. Cobb, 100 Ga. 139 ( 28 S.E. 72); Pyron v. Ruohs, 120 Ga. 1060, 1065 (5) ( 48 S.E. 434). No issuable defense having been filed, the trial judge did not err in rendering judgment for the plaintiff in the amount sued for. Code Ann. § 110-406.
Judgment affirmed. Nichols, P. J., and Jordan, J., concur.