Neal v. Davis Foundry & Machine Works
| Decision Date | 19 November 1908 |
| Citation | 63 S.E. 221,131 Ga. 701 |
| Parties | NEAL v. DAVIS FOUNDRY & MACHINE WORKS. |
| Court | Georgia Supreme Court |
On Rehearing, December 19, 1908.
Syllabus by the Court.
Where in a suit, the petition is verified, the answer should also be verified. But an omission to verify the answer is a curable defect. It was therefore not error on the trial to refuse to strike the answer and treat the case as in default and to allow the defendant to add a verification to the answer, which had been duly filed at the first term.
[Ed Note.-For other cases, see Pleading, Cent. Dig. § 907; Dec. Dig. §§ 290, 303. [*]]
Where a special demurrer to an answer and cross-petition was not filed until the case was called for trial at the second term of the court, and no reason appeared why it could not have been filed and disposed of at the first term, it should have been stricken.
[Ed. Note.-For other cases, see Pleading, Dec. Dig. § 355. [*]]
Where an answer to a verified petition was duly filed at the first term of the court, but was not itself verified, and the court allowed a verification thereto to be added, this was not an "amendment which materially changed the defense," so as to open the answer and cross-action to a special demurrer.
[Ed. Note.-For other cases, see Pleading, Dec. Dig. § 261. [*]]
Evidence as to the keeping on hand of a number of wooden patterns, to which objection was made on the ground that it was not authorized by the pleadings, was not subject to such objection.
[Ed. Note.-For other cases, see Mechanics' Liens, Dec. Dig. § 277. [*]]
Nor were the charges to which exception was taken on the ground that they were not authorized by the pleading, or that the damages referred to in them "were not properly set out" in the answer and cross-action, erroneous for that reason. It is not the function of the charge to review the pleadings as on special demurrer.
[Ed. Note.-For other cases, see Mechanics' Liens, Dec. Dig. § 277. [*]]
The other charges to which exceptions were taken, when read in the light of the evidence and of the entire charge, were not such as to require a new trial.
[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 1064. [*]]
While, in an action for damages to a number of different articles of personal property, a witness will not be allowed, over objection, to give a general estimate in one sum as the amount which he thinks the owner has been damaged, yet where he gives the details of the damage to each of the articles, with the amount thereof, the mere adding up such amounts and stating the total furnishes no ground for a new trial.
[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 1050. [*]]
None of the other grounds of the motion for a new trial require a reversal.
Error from Superior Court, Floyd County; Moses Wright, Judge.
Suit by J. A. Neal against the Davis Foundry & Machine Works. Judgment for defendant, and plaintiff brings error. Affirmed.
Where the judgment of the superior court is one which ought to have been made, the whole case, as disclosed by the record, may be considered in determining whether such ruling should be affirmed.
James Neal brought suit against the Davis Foundry & Machine Works, seeking to foreclose a lien for work done and materials furnished in connection with two buildings. The petition was verified by an affidavit stating that it was true to the best of the knowledge and belief of the affiant. The suit was brought to the July term, 1906, of Floyd superior court. No demurrer was filed at that term. The defendant filed an answer, in which was included a cross-action seeking to recover damages on the ground that the plaintiff contracted to put a roof on each of two buildings, using corrugated iron sheets therefor, and that it was done in such an unworkmanlike and unskillful manner that the roof leaked and caused damage, and that one of the buildings could not be completely repaired without putting on an entirely new roof. This answer was not verified, but no objection was raised to it at the first term of the court. At a subsequent term, when the case came on for trial, the plaintiff filed a special demurrer to the defendant's answer, which was overruled, and the plaintiff excepted. He also moved to strike the defendant's answer and that the case be declared in default, upon the ground that the answer was not verified when filed, and that, as the plaintiff's petition was sworn to, the defendant's answer should have been so likewise. The court denied the motion, and permitted the defendant to verify its answer. The plaintiff excepted pendente lite. The trial resulted in a general verdict "for the defendant." A motion was made for a new trial, which was overruled, and the plaintiff excepted.
Henry Walker and Dean & Dean, for plaintiff in error.
Seaborn & Barry Wright, for defendant in error.
1. Where a petition is verified, the answer should also be verified. Civ. Code 1895, § 5055. An omission to verify the answer is curable, and on proper application the presiding judge will allow the verification to be added, even after the first term. Ward v. Frick Co., 95 Ga. 804, 22 S.E. 899; Norton v. Scruggs, 108 Ga. 802, 34 S.E. 166; Rodgers v. Caldwell, 122 Ga. 279, 50 S.E. 95; Patton v. Bank of Lafayette, 124 Ga. 965, 53 S.E. 664, 5 L.R.A. (N. S.) 592. It was therefore proper to overrule a motion, made at the trial, that the answer should be stricken and the case be treated as in default, and to allow the defendant to add to the answer a verification.
2, 3. A special demurrer to the answer and cross-petition was filed at the second term of court, and was overruled. It would seem, from the order of recitals in the bill of exceptions, that this happened before the motion to strike the answer for want of verification was made, and before the amendment adding the verification was allowed. If so, it was too late to specially demur on the trial; no reason appearing why such demurrer could not have been filed and disposed of at the first term. It is contended that the allowance of the addition of the verification, by way of amendment, opened the answer and cross-action to demurrer. Section 5068, Civ. Code 1895, declares that "an amendment to a petition, or plea, or answer, which materially changes the cause of action or defense, opens the petition, plea, or answer, as amended, to demurrer or plea." It is not every possible amendment that throws open the door to a special demurrer, but only one of the character described. The mere addition of a verification to the answer and cross-petition, allowed by the court when the point was raised that the original petition was verified and the answer was not so, was not an amendment which materially changed the cause of action or defense within the meaning of the law, so as to authorize the filing of a special demurrer to particular allegations contained in the answer and cross-action. The demurrer having been filed too late, the proper practice would have been to decline to hear it at all and to order it stricken. But no assignment of error makes this specific question; and as the demurrer ought not to have been sustained when it was made, and as the practical effect in this case is the same, whether it be stricken or overruled, we will not reverse the judgment. Green v. Hambrick, 118 Ga. 569, 45 S.E. 420.
4. Evidence was introduced by the defendant to show that it kept on hand a number of wooden patterns, some of which were ruined and some injured by reason of the leaking of the roof, resulting from the improper manner in which it was put on by the plaintiff. Objection was made to this evidence, on the ground that the pleadings made no issue which authorized it. As against the objection made, the evidence was admissible. The answer of the defendant, in the nature of a cross-action, alleged that it was having the buildings constructed for a foundry and machine shop, and that this was known to the plaintiff; that he also knew that the defendant would store large numbers of valuable patterns in said buildings, and would make molds for the purpose of making castings; that the patterns were made of wood and glued together; that wetting them dissolved the glue and caused the pieces of wood to come apart and warp; and that the patterns were injured, damaged, and spoiled, to an amount named. Having held that the special demurrer to this cross-action was not in due time, these allegations stood as if not demurred to, and they were sufficient to furnish a basis for the admission of the evidence to which objection was made.
5. Objection was also made to certain charges of the court on the same subject, on the ground that they were not authorized by the pleadings, or that the damages referred to "were not properly set out in its plea," or because of similar objections. For the reason just above stated these objections are not good. It is not the function of the charge to review the pleadings as to the fullness of the allegations. To do so would be in effect to require the court in his charge to deal with the allegations as if upon special demurrer and submit to the jury the question thus raised.
6. Other grounds of objection were urged to some of the charges but, when the parts to which exception was taken are read in the light of the evidence and of the entire charge, we do not think they require a new trial. ...
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