Phoenix Air Conditioning Co. v. Al-Carol, Inc. , 129 Ga. App. 386 ( 1973 )

Been, Judge.

The plaintiff Phoenix Air Conditioning Co., Inc., a subcontractor of Atlanta Contractors & Engineers, Inc., which had done work for the defendant owner, Al-Carol, Inc., filed a claim of lien on the property and commenced foreclosure. The owner defended on the ground that the lien had been dissolved by its procurement of the general contractor’s sworn affidavit that the agreed price had been paid under Code Ann. § 67-2001 (2); moved for, and was granted, a summary judgment. The order from which this appeal is taken recites in part: "After consideration of the pleadings, affidavits, depositions, and argument of counsel, it is my opinion and it is so found that the defendant owner of the construction project in question took affidavits from the general contractor and its president, wherein it was sworn that all bills for labor and material had been paid, and they constitute a complete defense to plaintiffs claim of lien. The judgment of dismissal of the complaint. . . is based entirely on those affidavits.”

Appellant contends that both affidavits were fatally defective. One, sworn to by John M. Jones, President, recites that "Atlanta Contractors & Engineers, Inc.” was sworn and deposes, etc. Th is affidavit was signed and sworn to by "John M. Jones, Pres.” and contains a proper jurat; it therefore does have a "personal signature such as would subject the signer to punishment for the offense of false swearing if the averments proved untrue” as required by Bank of Dearing v. Howard, 44 Ga. App. 663 (162 SE 644), where the affiant purported to be a bank in its corporate character, and the signature read "Bank of Dearing, by” (a named person as Liquidating Agent).

The other affidavit, also signed by John M. Jones, states that he as contractor entered into the contract with Al-Carol, Inc. (giving its date, place, and purpose), that he made all subcontracts and that the agreed price for all labor and materials has been paid as of the date of this affidavit. His signature precedes the jurat "sworn to and subscribed before me this 14th day of September, 1969” and the signature of the notary public. It is contended that this affidavit is void because the introductory clause "John M. Jones, President of Atlanta Contractors & Engineers, Inc.” was added after it was signed. It appears without dispute that John M. Jones was the president of Atlanta Contractors & Engineers, Inc. and in such capacity did make the contracts referred to and was the proper person to give the affidavit; he was the "person at whose instance the work was done or material was furnished” as required by Code Ann. § 67-2002 (2), since "a corporation cannot swear.” Coffee v. McCaskey Register Co., 7 Ga. App. 425, 429 (66 SE 1032). Would the fact that the affidavit originally failed to state in the body thereof (if this is the case) that Jones was sworn be a fatal defect? A signed statement of facts, purporting to be the statement of the signer, followed by the certificate of an officer, authorized to administer oaths that it was sworn to and subscribed before him, is a lawful affidavit. Miller v. Caraker, 9 Ga. App. 255 (2) (71 SE 9); Waters v. State, 85 Ga. App. 79, 81 (68 SE2d 233). The introductory statement that Jones has been sworn is a statement of the notary, not the affiant, and it appears in the jurat; therefore, whether or not this line was filled in later becomes immaterial. As stated in Miller v. Caraker, supra, p. 257: "Under the practice in the British courts, great strictness was formerly required as to the forms of affidavits, and any departure from the prescribed form would vitiate the affidavit. But none of the American courts, so far as our investigation goes, has ever given any great weight to mere form in these matters, and it is well recognized in this state that no particular form is required, provided the facts sworn to are committed to writing and signed by the affiant, if, as a matter of fact, the oath was administered.”

Argued February 5, 1973 Decided June 27, 1973 Rehearing denied July 18, 1973 Lanier Randall, for appellant. Hatcher, Meyerson, Oxford & Irvin, Jack A. Wotton, Clifford Oxford, for appellee.

The trial court did not err in considering both affidavits and in entering up judgment in favor of the defendant.

Judgment affirmed.

Hall, P. J., Eberhardt, P. J., Clark and Stolz, JJ., concur. Bell, C. J., Pannell, Quillian and Evans, JJ., dissent.