Walker v. Seawell

Stephens, J.

1. An act approved November 15, 1901 (Ga. L. 1901, p. 55), as codified in section 4728 of the Civil Code of 1910, provides that in a suit on an open account, where the account sued on is verified by the plaintiff, it is essential to the defendant’s plea of no indebtedness that it be alleged in the plea that the defendant is not indebted “in any sum,” or that it specify the amount of indebtedness which the defendant Submits. Lee v. Perry, 19 Ga. App. 48 (90 S. E. 988). This is not restricted to a case in any court, and therefore applies to a case in a city court. The decision in DeSoto Plantation Co. v. Hammett, 111 Ga. 24 (36 S. E. 304), holding that in a suit on an open account a plea merely denying the paragraphs of the plaintiff’s petition is sufficient, was rendered prior to the passage of the act of 1901, and the ruling there made is superseded by that act. The cases of Ocean Steamship Co. v. Anderson, 112 Ga. 835 (38 S. E. 102), and Kahn v. Southern Building & Loan Asso., 115 Ga. 459 (41 S. E. 648), in which it was held that a plea of denial of a paragraphed allegation o'f a petition is a good plea, had no reference to a plea in a suit on an open account.

Decided January 16, 1931. Neufville & Neufville, for plaintiff in error. Dodd & Dodd, contra.

2. In a suit in a city court on an open account, where the plaintiff’s petition, which is paragraphed as required in section 5634, of the Civil Code, contains a paragraph alleging that the defendant is indebted to the plaintiff in a named sum, a plea which generally denies a number of the paragraphs of the petition, and which further alleges that the defendant has paid a designated portion of the amount of the account sued on and has not been given credit therefor, is not a plea denying that the defendant is indebted in any sum, or a plea specifying for what amount, if any, of the sum sued for, the defendant admits an indebtedness.

3. The court did not err in sustaining the special demurrer to the plea, and in thereafter striking^ the plea, upon the defendant’s failure to cure the defect in the plea by amendment. Cason v. Armour Fertilizer Works, 14 Ga. App. 208 (80 S. E. 679). Since the petition was verified by the plaintiff, the final judgment rendered for the plaintiff in the amount sued for was not error for the reason assigned.

Judgment affirmed.

JenMns, P. J., and Bell, J., concur.