Riley v. Southern Female Coll.

Citation45 S.E. 672,118 Ga. 849
PartiesRILEY. v. SOUTHERN FEMALE COLLEGE.
Decision Date30 October 1903
CourtSupreme Court of Georgia

PLEADING—VERIFICATION OF PLEA—JUDGMENT.

1. Where to an action against two defendants mi an unconditional contract in writing a plea is filed in the name of both defendants, but is sworn to by only one, and no effort is made by the other defendant to amend the plea by adding thereto his verification, the trial court is bound to render judgment against such defendant; and this is so although no objection to the plea was made by the plaintiff at the return term. Ward v. Prick Co., 22 S. E. 899. 95 Ga. 804, distinguished.

(Syllabus by the Court.)

Error from City Court of Macon; Robt Hodges, Judge.

Action by the Southern Female College against George S. Riley and Eula H. Riley. Judgment against Eula H. Riley, and she brings error. Affirmed.

M. G. Bayne, for plaintiff in error.

Steed & Ryals, for defendant in error.

CANDLER, J. Suit on two unconditional promissory notes was instituted in the city court of Macon by the Southern Female College against George S. Riley and Eula H. Riley. The defendants filed an answer, setting up, as to George S. Riley, that he had been adjudicated a bankrupt in the District Court of the United States for the Southern District of Georgia, and would soon be discharged from the debt sued on, and praying that he be allowed to plead his discharge in bar of the action at the trial term. The answer further denied liability on the part of Eula H. Riley on the ground that the debt evidenced by the notes sued on was that of her husband, George S. Riley. This plea was sworn to by George S. Riley, but not by Eula H. Riley. From the bill of exceptions it appears that "upon the hearing of said case the court refused the plea of Eula H. Riley, upon the ground that the same was not sworn to by her, and entered up the judgment against her, setting out in the judgment, 'There being no issuable defense filed on oath by the defendant Eula H. Riley, ' " etc. To the refusal of the court to consider her plea, and to the rendition of the judgment against her, Eula H. Riley excepts.

The position taken by counsel for the plaintiff in error is that, as no objection was made to Mrs. Riley's plea at the return term of the case, any defect therein was waived and in support of that position the case of Ward v. Frick Co., 95 Ga. 804, 22 S. E. 899, is cited. There it was held that "where to an action upon an unconditional contract in writing a plea was filed at the...

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