Trippe v. Sheppard

94 S.E. 328, 21 Ga. App. 279, 1917 Ga. App. LEXIS 554

• Court: Court of Appeals of Georgia
• Decided: November 14, 1917
• Docket: 8605
• Status: Published

Opinion

Jenkins, J.

1. Where in a suit filed in and addressed to the city court, ■ with prayer to that court for process, there was attached process, tested in the name of “W. H. Sheffield, judge of said court,” and the name of the judge of the court was “E. H. Sheffield,” the process, being regular in every other respect, was not void; and it was not error for the court, upon motion, to allow an amendment striking the initial “W.” and inserting in lieu thereof the initial “E.,” and to overrule the plea to the jurisdiction. Civil Code (1910), §§ 5693, 5572, 570.9; Mitchell v. Long, 74 Ga. 94; R. & D. Railroad Co. v. Benson, 86 Ga. 203 (12 S. E. 357, 22 Am. St. E. 446) ; Kelly v. Budge, 2 Ga. App. 759 (59 S. E. 19); Sapp v. Parrish, 3 Ga. App. 234 (59 S. E. 821); Ware v. Lamar, 16 Ga. App. 560 (85 S. E. 824).

Decided November 14, 1917.

Complaint; from city court of Blakely — Judge Sheffield. Feb- • ruary 19, 1917.

Glessner & Collins, for plaintiff in error. E. L. Smith, L. M. Bambo, contra.

2. This was a suit upon a promissory note which was unconditional in so far as it related to the payment of the principal and interest, and conditional only so far as it related to the payment of attorney’s fees. The defendant filed his answer in which he admitted that he had been duly served with notice for the collection of attorney’s fees, and which answer contained four special pleas, setting up fraud, breach of express warranty, breach of implied warranty, and failure of consideration, respectively. These pleas were not verified, and counsel for the plaintiff moved to strike them for this reason; whereupon the defendant amended his answer by swearing to all of his defenses except that which set up fraud. Counsel for the plaintiff renewed the motion to strike the plea remaining unverified, which motion was sustained. Eeld, that this plea being directed solely to the unconditional part of the contract, and not having been verified, the court did not err in striking it. O’Kelly v. Welch, 18 Ga. App. 157 (89 S. E. 76); Turner v. Bank of Maysville, 13 Ga. App. 547 (79 S. E. 180); Wade v. Watson, 129 Ga. 614, 616 (59 S. E. 294).

Judgment affirmed.

Wade, O. J., and Luke, J., concur.