Summary
In Mellon Bank, the court expressly disapproved of a decision in which the Court of Appeals held that an affidavit which was not sworn before a judge or clerk, despite a statutory provision requiring such, was insufficient and the proceeding therefore absolutely void.
Summary of this case from Horizon Credit v. Lanier BankOpinion
34290.
SUBMITTED DECEMBER 29, 1978.
DECIDED FEBRUARY 27, 1979.
Certiorari to the Court of Appeals of Georgia — 147 Ga. App. 233 ( 248 S.E.2d 330) (1978).
Memory Thomas, Terry A. Dillard, for appellant.
J. Laddie Boatright, Elsie Higgs Griner, for appellee.
This court granted certiorari to review the ruling of the Court of Appeals that a writ of possession is void ab initio where the oath required by Code Ann. § 67-702 is made before a notary public but later properly verified by amendment.
Since the adoption of the Civil Practice Act (Ga. L. 1966, p. 609), the courts of this state have held that the failure to verify is an amendable defect. Wall v. Mills, 126 Ga. App. 149 (1) ( 190 S.E.2d 146) (1972); Rigby v. Powell, 233 Ga. 158 (2) ( 210 S.E.2d 696) (1974). The amendment was filed prior to the pre-trial order. It thus could be filed as a matter of right. Code Ann. § 81A-115 (a).
The improper verification of the petition was an amendable defect under the Civil Practice Act, and the Court of Appeals erred in holding the petition void ab initio. Anything to the contrary in Jordan v. Ford Motor Credit Co., 141 Ga. App. 280 ( 233 S.E.2d 256) (1977) is specifically disapproved and will not be followed.
Judgment reversed. All the Justices concur, except Undercofler, P. J., who dissents.