Phoenix Air Conditioning Co., Inc. v. Al-Carol, Inc.
Citation | 129 Ga.App. 386,199 S.E.2d 556 |
Decision Date | 27 June 1973 |
Docket Number | INC,Nos. 1,2,3,No. 47909,AL-CARO,47909,s. 1 |
Parties | PHOENIX AIR CONDITIONING COMPANY, INC. v |
Court | Georgia Court of Appeals |
Lanier Randall, Atlanta, for appellant.
Hatcher, Meyerson, Oxford & Irvin, Jack A. Wotton, Clifford Oxford, Atlanta, for appellee.
Syllabus Opinion by the Court
The plaintiff Phoenix Air Conditioning Co., Inc., a subcontractor of Atlanta Contractors & Engineers, Inc., which had done work for the defendant owner, Al-Carol, Inc., filed a claim of lien on the property and commenced foreclosure. The owner defended on the ground that the lien had been dissolved by its procurement of the general contractor's sworn affidavit that the agreed price had been paid under Code Ann. § 67-2001(2); Moved for, and was granted, a summary judgment. The order from which this appeal is taken recites in part:
Appellant contends that both affidavits were fatally defective. One, sworn to by John M. Jones, President, recites that 'Atlanta Contractors & Engineers, Inc.' was sworn and deposes, etc. This affidavit was signed and sworn to by 'John M. Jones, Pres.' and contains a proper jurat; it therefore does have a 'personal signature such as would subject the signer to punishment for the offense of false swearing if the averments proved untrue' as required by Bank of Dearing v. Howard, 44 Ga.App. 663, 162 S.E. 644, where the affiant purported to be a bank in its corporate character, and the signature read 'Bank of Dearing, by' (a named person as Liquidating Agent).
The other affidavit, also signed by John M. Jones, states that he as contractor entered into the contract with AlCarol, Inc. (giving its date, place, and purpose), that he made all subcontracts and that the agreed price for all labor and materials has been paid as of the date of this affidavit. His signature precedes the jurat 'sworn to and subscribed before me this 14th day of September 1969' and the signature of the notary public. It is contended that this affidavit is void because the introductory clause 'John M. Jones, President of Atlanta Contractors & Engineers, Inc.' was added after it was signed. It appears without dispute that John M. Jones was the president of Atlanta Contractors & Engineers, Inc. and in such capacity did make the contracts referred to and was the proper person to give the affidavit; he was the 'person at whose instance the work was done or material was furnished' as required by Code Ann. § 67-2002(2), since 'a corporation cannot swear.' Coffee v. McCaskey Register Co., 7 Ga.App. 425, 429, 66 S.E. 1032. Would the fact that the affidavit originally failed to state in the body thereof (if this is the case) that Jones was sworn to be a fatal defect? A signed statement of facts, purporting to be the statement of the signer, followed by the certificate of an officer, authorized to administer oaths that it was sworn to and subscribed before him, is a lawful affidavit. Miller v. Caraker, 9 Ga.App. 255(2), 71 S.E. 9; Waters v. State, 85 Ga.App. 79, 81, 68 S.E.2d 233. The introductory statement that Jones has been sworn is a statement of the notary, not the affiant, and it appears in the jurat; therefore, whether or not this line was filled in later becomes immaterial. As stated in Miller v. Caraker, supra, 9 Ga.App. p. 257, 71 S.E. p. 10:
The trial court did not err in considering both affidavits and in entering up judgment in favor of the defendant.
Judgment affirmed.
A serious question is made as to whether the second affidavit, referred to in the majority opinion, had been altered. Counsel for the appellee concedes this is true and therefore relies solely on...
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...to administer oaths that it was sworn to and subscribed before him, is a lawful affidavit." Phoenix Air Conditioning Co. v. Al-Carol, Inc., 129 Ga.App. 386, 387, 199 S.E.2d 556 (1973). The only question then is whether the failure to file an original was an amendable Sisk argues that Waldro......
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