Opinion
34859.
DECIDED NOVEMBER 18, 1953.
Damages. Before Judge Etheridge. Fulton Civil Court. July 30, 1953.
Endicott Endicott, for plaintiff in error.
J. U. McDow, M. D. McLendon, Bryan, Carter, Ansley Smith, contra.
1. A verified petition requires a verified plea and answer, which may be done by amendment after the first term.
2. A certificate of counsel for the defendant, to the effect that he has mailed a copy of the plea and answer filed to the plaintiff's action to counsel for the plaintiff, which certificate is not traversed, is taken as true.
3. The judgment of the court, without a jury, in favor of the defendant generally and against the plaintiff on his alleged cause of action, is authorized by the evidence.
DECIDED NOVEMBER 18, 1953.
On February 13, 1953, Richard E. Endicott (hereinafter called the plaintiff) brought suit in the Civil Court of Fulton County against Mrs. Agnes A. Ogletree (hereinafter called the defendant), seeking to recover damages from a collision between the automobile of the plaintiff and that of the defendant, whereby the reasonable market value of the plaintiff's car was diminished in the amount of $600, on account of the alleged negligence of the defendant in operating her car. The petition was verified by affidavit of the plaintiff. The defendant filed her answer on March 2, 1953, denying liability, and also set up by cross-action that, on account of the plaintiff's negligence, she had sustained damages of $435.38. This answer was not sworn to. The defendant's counsel certified that he had mailed a copy thereof to the plaintiff's counsel on March 2, 1953. Thereupon, the plaintiff on March 17, 1953, filed his general and special demurrers to the answer and cross-bill, and set up: (1) that said answer and cross-bill were filed too late to give the court jurisdiction; (2) that said answer and cross-bill were not served upon his attorney prior to the filing thereof, as required by law; and (3) that such answer and cross-bill should be stricken because they do not meet the requirements of the law, not being verified, although the plaintiff's petition was verified.
The defendant thereafter amended her answer and cross-action, and added a verification thereto. On the same day, April 8, 1953, her attorney certified that he had mailed a copy thereof to the plaintiff.
The plaintiff on April 10, 1953, demurred generally and specially to the answer and cross-bill as amended and to the amendment, setting out: (1) that the answer and plea as amended failed to set forth any defense to the petition; (2) that said plea and answer were not filed before the appearance call because a verified petition requires a verified answer, and since the answer and cross-bill were not verified before being filed, there is no answer, and the appearance term having passed, it is now too late to answer; (3) because said amendment attempts to set up a new cause of action, in that same attempts to correct and complete an answer that, according to the rules of pleading, is not an answer; (4) because said amendment is not verified as required by law; and (5) because said amendment was filed after the appearance term and is too late for consideration by the court. On April 24, 1953, the trial court overruled said demurrers.
To the overruling of his demurrers the plaintiff within due time excepted pendente lite, and error is assigned on such pendente lite exceptions.
Thereafter, the case proceeded to trial before the judge without the intervention of a jury, and resulted in a judgment in favor of the defendant generally. There was evidence that the defendant was not at fault, and that the plaintiff's damages were not caused by any negligence of the defendant. The plaintiff moved for a new trial, and to the judgment denying same, excepts to this court.
1. The substance of the plaintiff's attack upon the defendant's answer and cross-action as being subject to the plaintiff's demurrers and motion to strike was that they were not verified, and that, the petition having been verified, a verified answer was required. "In all cases where the plaintiff shall file a petition with an affidavit attached that the facts stated in the petition are true to the best of his knowledge and belief, the defendant shall in like manner verify any plea or answer." Code § 81-401. While the plaintiff's petition was not such as required verification, when he did swear thereto, it was then incumbent on the defendant to verify her plea and cross-action. Bray v. Peace, 131 Ga. 637 ( 62 S.E. 1025). However, where such plea is not verified, it may be amended and this may be done after the first term. Southern Ry. Co. v. Atlanta Sand c. Co., 8 Ga. App. 315 ( 68 S.E. 1078); Neal v. Davis Foundry c. Works, 131 Ga. 701 ( 63 S.E. 221); Oliver v. Webb, 12 Ga. App. 216 ( 76 S.E. 1081); Simmons v. J. A. Jones Const. Co., 72 Ga. App. 517 ( 34 S.E.2d 300).
There is no merit in the contention of the plaintiff that he was not served with a copy of the answer and cross-action, or with same as amended. There is attached to the original answer and cross-action a certificate of counsel for the defendant that he mailed a copy thereof to the plaintiff's attorney, and there is appended to the amendment a certificate of such counsel that he mailed a copy of same to plaintiff's said counsel. These certificates are not traversed and are taken as true.
There is no merit in the contention that the amendment "attempts to set up a new cause of action in that same attempts to correct and complete an answer that according to the rules of pleading is not an answer." This ground of the demurrer is not well taken. The court did not for any reason err in overruling the demurrers to the defendant's answer and cross-action and to the same as amended.
2. The defendant did not recover on the cross-action, but judgment was rendered by the court in favor of the defendant on the plaintiff's cause of action. None of the assignments of error on the question of the sufficiency of the cross-bill, therefore, show harm, even had there been any error relative to the court's rulings thereon.
The judgment in favor of the defendant generally — that is, insofar as the plaintiff's alleged claim against her — was supported by the evidence. The judge, without a jury, was authorized to find in favor of the defendant and against the plaintiff on the questions raised by the petition and the defendant's denial of liability thereon.
It follows that the court did not err in denying the motion for new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.