Gen. Specialty Co v. Tifton Ice & Power Co

• Decision Date: 29 January 1908
• Docket Number: (No. 554.)
• Citation: 60 S.E. 121,3 Ga.App. 502
• Court: Georgia Court of Appeals
• Parties: GENERAL SPECIALTY CO. v. TIFTON ICE & POWER CO.

60 S.E. 121

3 Ga.App. 502

GENERAL SPECIALTY CO.

v.TIFTON ICE & POWER CO.

(No. 554.)

Court of Appeals of Georgia.

Jan. 29, 1908.

1. Account, Action on — Affidavit — Verification.

A copy affidavit will not take the place of the original affidavit required by law to verify an open account. The act of 1901, requiring, where a suit has been brought on an open account verified by the plaintiff, that the plea shall likewise be verified, does not contemplate that the account can be verified by a copy affidavit. When the account is not verified by an original affidavit, the defendant is not required to verify his plea.

2. Same—Failure to Verify Plea.

The account of the plaintiff in this case not being verified by an original affidavit, the court properly refused to strike the plea of the defendant, although it was not verified.

3. Trial—Nonsuit.

For the same reason it was not error, in the absence of evidence in behalf of the plaintiff, to award a nonsuit upon the defendant's motion.

(Syllabus by the Court.)

Error from City Court of Tifton; R. Eve, Judge.

Action by the General Specialty Company against the Tifton Ice & Power Company. Judgment of nonsuit, and the plaintiff brings error. Affirmed.

J. C. Smith, W. R. Smith, and R. A. Hendricks, for plaintiff in error.

Fulwood & Murray, for defendant in error.

RUSSELL, J. The General Specialty Company sued the Tifton Ice & Power Company upon an open account for $75. It alleged, first, that the defendant was a corporation having its principal place of business in Tift county; second, that the defendant was indebted to the petitioner in the sum of $75 upon an open account; third, demand and refusal. Attached as an exhibit to the petition was an account, and attached thereto a copy affidavit, and it appears from the bill of exceptions that the original affidavit was not annexed to the original petition, either at the time the suit was brought or when the copy was served on the defendant; but in lieu thereof there was nothing but a copy affidavit. The defendant, in conformity with the Neel act (Civ. Code 1895, § 4961), admitted the first paragraph of the petition and denied the second, third, and fourthparagraphs. The plaintiff demurred to defendant's plea, and moved to strike it, upon the ground that there was no affidavit attached thereto in compliance with the act of 1901 (Laws 1901, p. 55), and for that reason the plea raised no issue as to the correctness of the account. The question turns upon whether a copy of the affidavit, provided by law to be attached to an open account upon which...