Coffee v. McCaskey Register Co.
| Decision Date | 04 December 1909 |
| Docket Number | 1,721. |
| Parties | COFFEE v. McCASKEY REGISTER CO. |
| Court | Georgia Court of Appeals |
Rehearing Denied Feb. 22, 1910.
Syllabus by the Court.
Where in an action in a justice's court upon a sworn account there was personal service upon the defendant, it was not error, upon motion to strike an unsworn plea filed by the defendant, where no effort was made to amend the plea by attaching an affidavit verifying it. Evidence in support of the unsworn plea was inadmissible; and upon the introduction of the account, verified by an affidavit that it was correct due, and unpaid, a verdict in favor of the plaintiff was demanded.
The provisions of Civ. Code 1895, § 4130, permitting the verification of an account by the plaintiff, necessarily and impliedly include the right to verify it by any duly authorized agent of the plaintiff whose knowledge of the facts peculiarly qualify him to make the necessary affidavit. An attorney at law is such an agent as can properly prove a plaintiff's account, if the facts necessary to prove it rest in his personal knowledge.
Error from Superior Court, Fulton County; W. D. Ellis, Judge.
Action in a justice's court by the McCaskey Register Company against J. E. Coffee. Plaintiff had judgment. Defendant's petition for certiorari having been overruled, he brings error. Affirmed.
C. B Rosser, Jr., for plaintiff in error.
Walter R. Brown, for defendant in error.
The plaintiff in error excepts to the judgment overruling his certiorari. It appears from the record that the McCaskey Register Company brought suit in a justice's court against Coffee upon an account for a register and register supplies. The account had been credited by a check; but the check was not paid upon presentation, and for that reason the credit was taken off, and $1.50 was added for protest fee.
The account as thus stated was verified by the affidavit of the plaintiff's attorney. At the appearance term the defendant, by his attorney, filed a plea, which was not verified, in which he set up the defense that the check was not presented within a reasonable time, and that by reason of the negligence of the plaintiff in holding the check for an unreasonable time, during which the drawer became insolvent, the defendant, as indorser, was discharged from any liability upon the check. The justice rendered judgment in favor of the plaintiff, and the defendant appealed to a jury. Upon the trial before the jury the plaintiff's attorney made an oral motion to strike the defendant's plea, upon the ground that the plea was not verified as required by law. The justice sustained this motion, and in the certiorari this ruling is assigned as error. During the trial the plaintiff's attorney searched his pockets for the check of the Kentucky Furniture Company, which had been indorsed by the defendant to the plaintiff, and, failing to find it, asked permission of the court, in the presence of the jury, to go to his office and get the check. The court replied that the account had been sufficiently proved anyway, and directed him to hand the papers to the jury. While the jury were calculating from the papers which had been handed them, the plaintiff's attorney found the check in his pocket and handed it to the jury, without offering it and giving the defendant's attorney an opportunity to object to the same. The only error assigned upon this in the certiorari is that the submission of the check to the jury, without giving the defendant's counsel the right to object, was contrary to law. It does not appear that defendant's counsel did not see the plaintiff's counsel hand the check to the jury, and if he did see it he made no objection at that time. Objection is also made to the fact that there was submitted to the jury, with the check, the notarial certificate of protest of which the defendant's attorney was ignorant, and that the court refused to withdraw this evidence from the jury after the jury had signed up a verdict and the papers had been returned to the court, ruling that the objection came too late. Exception is also taken to the fact that the jury were not required to retire to make up their verdict, but rendered the verdict without leaving their seats. Upon the hearing, the judge of the superior court overruled the certiorari and entered a judgment for costs against the plaintiff in certiorari.
There is really only one question presented by the record. Did the justice of the peace err in striking the unsworn answer of the defendant? We concur in the opinion of the judge of the superior court that there was no error in striking the answer of the defendant; the answer not being verified as required by Civ. Code 1895, § 4130, and the defendant having made no motion to amend it by attaching the required affidavit in conformity with the ruling in Barnes v. Coker, 112 Ga. 137, 37 S.E. 104. The action...
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Bank Of Dearing v. Howard, 21677.
...affidavit personally made the affidavit as the duly authorized agent of such firm. A corporation cannot swear. Coffee v. McCaskey Register Co., 7 Ga. App. 425, 429, 66 S. E. 1032. In this respect, as in other respects, it acts only through its agents, but the agent himself must swear for th......
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Couch v. White
...not intervened. In this connection see Cox v. Snell, 77 Ga. 469; Stafford v. Wilson, 122 Ga. 32, 49 S. E. 800. In Coffee v. McClasky Register Co., 7 Ga. App. 425, 66 S. E. 1032 (in which case, however, no effort was made to amend the unsworn plea by verifying it), we held that evidence in s......