Pierce v. Jones

• Decision Date: 05 March 1927
• Docket Number: 17241.
• Citation: 137 S.E. 296,36 Ga.App. 561
• Parties: PIERCE v. JONES.
• Court: Georgia Court of Appeals

137 S.E. 296

36 Ga.App. 561

PIERCE v. JONES.

No. 17241.

Court of Appeals of Georgia, Second Division

March 5, 1927

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Suit by S.C. Jones against B. E. Pierce. Judgment for plaintiff, and defendant brings error. Affirmed.

Statement of Facts by Stephens, J.

This is a suit by a payee upon notes for the purchase money of a house and lot. The defendant, in his answer as amended pleaded that, "when said property was sold to him, it was represented [by the plaintiff's agent] that there was sewerage and water connections therewith," whereas "there was no sewerage on said property at all," and the "only method of carrying off the sewerage *** was a septic tank which was wholly inadequate for the purpose." "If it had been represented to him [the defendant] that there was no sewerage connection there, he would not have purchased said property"; "all of which was unknown to this defendant, and could not have been discovered by ordinary observation," or "by superficial inspection." The answer further alleged that the defendant had been damaged because of having to install adequate sewerage connections at a stated cost, which was pleaded in abatement of the purchase price.

The notes provided for the payment of a certain per cent. of the debt for attorney's fees, and the petition alleged that "due notice in writing" of the plaintiff's intention "to sue these notes at the March term, 1925 to the superior court of said county has been given to said defendant in terms of the statute more than ten days prior to the filing of this suit, to wit, January 28, 1925; said written notice having been given for the purpose of binding said defendant to the payment of attorney's fees as specified in said notes." No copy of the notice was annexed to the petition, but the defendant attached to his answer the notice served upon him, and alleged that the notice was not in law such as to entitle the plaintiff to recover attorney's fees, "for the reason that it does not state where said notes were located or where they should be paid, or whom they should be paid to." The notice was addressed to the defendant and began as follows "Take notice that I have for collection two notes against you in favor of Mrs. Susie C. Jones of Augusta. Ga.," being the notes sued on. Mrs. Jones was the payee. The notice declared that the suit would be brought in her name, and it was so brought. The notice was dated January 26 1925, and was signed as follows: "J. S. Adams, Attorney at Law, for Mrs. Susie C. Jones, Dublin, Ga."

The defendant's answer was not verified. The plaintiff demurred generally and specially to the original answer, and one ground of the demurrer was as follows:

"The plea and answer filed by the defendant is not sworn to or verified by the oath of the defendant or any one for him, and plaintiff moves the court to strike said plea for that reason."

The defendant thereupon filed an amendment to his answer, which amendment expressly stated that it was made in response to the plaintiff's demurrer. This amendment was not verified, and the defendant still failed to verify his answer, or to move to be allowed to do so. The court thereafter passed a general order sustaining the demurrer and striking the plea as amended. To this ruling the defendant excepted pendente lite. A verdict was thereupon directed for the plaintiff for principal, interest, and attorney's fees. The defendant filed a motion for a new trial, which was overruled, and the defendant brought the case to this court for review. The defendant filed a demurrer to the plaintiff's petition, and this demurrer was overruled, but no exceptions to that judgment have been taken by the defendant.

Pierce Bros., of Augusta, for plaintiff in error.

D. G. Fogarty, of Augusta, and Hardwick & Adams, of Dublin, for defendant in error.

Syllabus OPINION.

STEPHENS J.

1. Where the defendant, in a suit upon a promissory note, which is unconditional in so far as it relates to the payment of the principal and interest, and conditional in so far as it relates to the payment of attorney's fees, seeks in his answer to defeat in part the plaintiff's claim for principal and interest, the answer should be verified as to the allegations made for that purpose. Where, as in the present case, the answer is not so verified, and the plaintiff interposes a demurrer to the answer, based upon several grounds, one of which is that the answer is not verified, and where the defendant then amends his answer, and the amendment affirmatively shows that it is made in response to the demurrer, but is not verified, and the defendant still fails to verify his answer, or to move to be allowed to do so, there is no error in striking, for want of...