Crump v. Jordan

268 S.E.2d 787, 154 Ga. App. 503, 1980 Ga. App. LEXIS 2249

• Court: Court of Appeals of Georgia
• Decided: May 2, 1980
• Docket: 59311
• Status: Published

Opinion

Smith, Judge.

This appeal arises from the grant of a writ of possession and a default judgment. Appellants’ sole enumeration of error attacks the validity of appellee’s affidavit under Code § 61-301. We affirm.

1. The subject affidavit was sworn to and subscribed before a notary public although Code § 61-301 requires that the oath be made "before the judge of the superior court or any justice of the peace...” Nonetheless, a summons was issued. Appellants, however, made no answer to the resulting summons within the time allotted, nor did they seek to reopen the default as a matter of right. See Code §§ 61-302 and 61-303. "If there was a defect in verification or lack thereof, it was an amendable one, waived by failure timely to object . ..” American Liberty Ins. Co. v. Sanders, 120 Ga. App. 202, 207 (170 SE2d 249) (1969), reversed on other grounds Sanders v. American Liberty Ins. Co., 225 Ga. 796 (171 SE2d 539) (1969); see Mellon Bank v. Coppage, 243 Ga. 219 (253 SE2d 202) (1979); Cobb v. McCrary, 152 Ga. App. 212 (262 SE2d 538) (1979). Therefore, appellants’ enumeration of error is without merit.

Submitted January 17, 1980 Decided May 2, 1980. Dudley B. Magruder, Jr., Karl M. Kothe, for appellants. Frank H. Jones, William W. Byington, Jr., for appellee.

2. Notwithstanding appellants’ suggestion upon the record, we decline to stay this proceeding pending a resolution of their intervening bankruptcy petition. See North Peachtree &c. Ltd. v. Hicks, 136 Ga. App. 426 (5) (221 SE2d 607) (1975).

Judgment affirmed.

McMurray, P. J., and Banke, J., concur.