Ward v. Frick Co

• Decision Date: 10 June 1895
• Parties: WARD et al. v. FRICK CO.
• Court: Georgia Supreme Court

22 S.E. 899

95 Ga. 804

WARD et al.

v.FRICK CO.

Supreme Court of Georgia.

June 10, 1895.

Plea—Waiver of Defects—Amendment.

It being, under the pleading act of 1893, the duty of the judge of the superior court at each regular term to call all cases on the appearance docket, and hear and determine all objections made to the sufficiency of petitions and pleas, it is incumbent upon plaintiffs to make at that term their exceptions to pleas filed. Consequently, where, to an action upon an unconditional contract in writing, a plea was filed at the first term, which set forth a good defense, but was not sworn to by the defendants, and no objection was then made to it because of this defect, the plaintiff will be held to have waived the same so far as that term is concerned; and if, at a subsequent term, he moves to strike the plea because of such defect, the court should then allow the defendants to complete the plea by a proper verification.

(Syllabus by the Court.)

Error from superior court, Coffee county; J. L. Sweat, Judge.

Action by the Prick Company against C. A. Ward, Jr., and others. Judgment for plaintiff, and defendants bring error. Reversed.

Ward & Dart, J. M. Denton, and E. M. Mitchell, for plaintiffs in error.

G. J. Hol-ton & Son, for defendant in error.

ATKINSON, J. The pleading act of 1893 (Acts 1893, p. 56) is highly remedial in its purposes. It was not designed to advance the interests of plaintiffs alone, but its purpose, while simplifying procedure, was to make more speedy the trial of civil cases by rendering more certain the issues to be tried. It therefore requires that all exceptions to declarations and pleas shall be heard and determined at the first term, and before they can be heard they must at that term first be taken. If the declaration of the plaintiff is insufficient in law, or if, for any reason, the same be not sufficiently full to enable the defendant to plead thereto, he shall make exception at the first term, and, failing in this, will be held to have waived any objection to the declaration curable by amendment Inasmuch as all exceptions to pleas are likewise required to be heard and determined at the first term, it is the duty of the defendant at that term to make his appearance, and file such pleas as he may deem proper to his defense. If the plaintiff does not at that term except to the sufficiency of such pleas, he will be held to have waived any objection thereto which may be cured by subsequent amendment. For this reason,...