Mellon Bank, N. A. v. Coppage
| Decision Date | 27 February 1979 |
| Docket Number | No. 34290,34290 |
| Citation | 243 Ga. 219,253 S.E.2d 202 |
| Court | Georgia Supreme Court |
| Parties | MELLON BANK, N. A. v. COPPAGE. |
Memory & Thomas, Terry A. Dillard, Waycross, for appellant.
J. Laddie Boatright, Hazlehurst, Elsie Higgs Griner, Nashville, for appellee.
This court granted certiorari to review the ruling of the Court of Appeals that a writ of possession is void ab initio where the oath required by Code Ann. § 67-702 is made before a notary public but later properly verified by amendment.
Since the adoption of the Civil Practice Act (Ga.L.1966, p. 609), the courts of this state have held that the failure to verify is an amendable defect. Wall v. Mills, 126 Ga.App. 149(1), 190 S.E.2d 146 (1972); Rigby v. Powell, 233 Ga. 158(2), 210 S.E.2d 696 (1974). The amendment was filed prior to the pre-trial order. It thus could be filed as a matter of right. Code Ann. § 81A-115(a).
The improper verification of the petition was an amendable defect under the Civil Practice Act, and the Court of Appeals erred in holding the petition void ab initio. Anything to the contrary in Jordan v. Ford Motor Credit Co., 141 Ga.App. 280, 233 S.E.2d 256 (1977) is specifically disapproved and will not be followed.
Judgment reversed.
All the Justices concur, except UNDERCOFLER, P. J., who dissents.
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...affidavit in a civil case, being subject to amendment, is not void even without the jurat'") (emphasis supplied); Mellon Bank v. Coppage, 243 Ga. 219, 253 S.E.2d 202 (1979) (writ obtained with verification signed before wrong person not void ab initio); Horizon Credit Corp. v. Lanier Bank &......
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...defective. However, such error is an amendable defect and does not render the affidavit void ab initio. See Mellon Bank v. Coppage, 243 Ga. 219, 253 S.E.2d 202 (1979); Horizon Credit Corp. v. Lanier Bank, etc., Co., 220 Ga.App. 362, 469 S.E.2d 452 (1996). Further, the plaintiff failed to ra......
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...of the record or pleading, the judgment was not void on its face. The Supreme Court reached a similar result in Mellon Bank v. Coppage, 243 Ga. 219, 253 S.E.2d 202 (1979). In Mellon Bank, the Court expressly disapproved of a decision in which the Court of Appeals held that an affidavit whic......
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...authorized to do so, the proceedings are void subject to the amendment of obtaining the statutorily required oath. Mellon Bank, N. A. v. Coppage, 243 Ga. 219, 253 S.E.2d 202. A fortiori, there is an even stronger basis for finding the proceedings void where no oath at all is administered pr......