Roth v. Neal Smith Inc. , 47 Ga. App. 258 ( 1933 )

Jenkins, P. J.

1. Section 37(b) in tlie amendatory act approved July 31, 1925, relating to the municipal court of Atlanta (Ga. L. 1925, p. 380), provides as follows: “No cross-action shall be necessary and all affirmative relief appropriate to the facts shall be granted on any claim set up by written answer; provided, that where matter seeking set-off, or other affirmative relief is pleaded, a copy of the answer shall be deposited with the clerk, accompanied by a stamped envelope, and by said clerk mailed to the plaintiff, or his attorney and at the address given on the filing docket. The defendant, or his attorney, shall make affidavit on such answer that a copy has been deposited as aforesaid.”

2. The special provisions of this act relating to service of a copy of the answer on the plaintiff or his attorney, “where matter seeking set-off or other affirmative relief is pleaded,” do not apply to an answer which, as amended or modified by order of the court, is purely defensive in nature in seeking merely to extinguish or reduce the plaintiff’s claim without affirmative relief. Since the trial judge, in striking the $5.06 excess claimed by the defendant as a credit for goods returned over the amount of the plaintiff’s claim, and in denying the plaintiff’s motion to strike the answer because it had not been served as required by the act, in effect left and construed the plea as one merely defensive in character, and the language of the answer,. taken with that of the petition, is equally appropriate to a plea of payment and purely defensive matter as to a plea of set-off or for affirmative relief, and since the plaintiff acquiesced in and can not complain of the reduction in the amount of the defendant’s claim, and has the burden of showing error in the refusal to strike the answer, it can not be held that the court so erred. The superior court properly denied the writ of certiorari.

Judgment affirmed.

Stephens and Sutton, JJ. eoneur. George G. Finch, G. L. Padgett, for plaintiff.