C. E. Morgan Building Products, Inc. v. Safe-Lite Manufacturing, Inc.

260 S.E.2d 870, 244 Ga. 475, 1979 Ga. LEXIS 1296

• Court: Supreme Court of Georgia
• Decided: October 16, 1979
• Docket: 35272
• Status: Published

Opinion

Marshall, Justice.

In the present case, the Court of Appeals held that where a party seeking to foreclose a security interest in personal property sues out a writ of possession based on a petition not under oath, in violation of Code Ann. § 67-702 (Ga. L. 1974, pp. 398, 399, as amended), the proceedings are rendered void. We reverse.

The failure to verify a petition for writ of possession under Code Ann. § 67-702 is an amendable defect under the CPA and does not render the proceedings void. Mellon Bank v. Coppage, 243 Ga. 219 (253 SE2d 202) (1979). An amendable defect in the pleadings is cured by the judgment. Alexander v. Askin Squire Corp., 144 Ga. App. 662 (242 SE2d 324) (1978). Even prior to the CPA it was held that where a party fails to verify a plea, but the parties go to trial on the merits of the plea, making no objection to the defect as to verification, such defect is considered waived. Guarantee Trust Life Ins. Co. v. Ricker, 93 Ga. App. 554 (92 SE2d 323) (1956) and cits.

In this case, the parties went to trial on the merits of the plaintiffs petition for writ of possession without the defendant’s raising any objection concerning the plaintiffs failure to verify the petition until appeal. The objection came too late.

Argued September 17, 1979 Decided October 16, 1979. Whelchel, Whelchel & Carlton, HoytH. Whelchel, Jr., for appellant. G. Gerald Kunes, for appellee.

Judgment reversed.

All the Justices concur, except Undercofler, P. J., who concurs in the judgment only.