7 Ga. App. 69 | Ga. Ct. App. | 1909
Upon the trial of this case in the justice’s court the plaintiff introduced the account sued on, and her affidavit as ■evidence of its justness and correctness. The defendant’s counsel then proceeded to introduce the defendant as a witness in her own behalf, and objection was interposed by the plaintiff, upon the ground that no counter-affidavit had been filed. The justice sustained this objection. The defendant thereupon asked for time to Avrite a counter-affidavit and have it verified, preparatory to -filing. The justice declined to suspend the trial for this purpose. It ap
Section 4130 of the Civil Code provides, that “When suit is brought upon an open account in a justice court, such account may be proved by the written affidavit of the plaintiff, and when so proved, shall be received in evidence as if proved in open court; nevertheless, if the defendant will file his affidavit denying the justice and fairness of the whole or any part of such account, the court shall not give judgment in favor of the plaintiff for that part of the account so denied and controverted, unless. supported by other proof. In all cases when such affidavit to prove the account is made, there shall be personal service upon the defendant before judgment is given for the plaintiff under the provisions of this section. In all cases where a counter-affidavit is filed by the defendant, and the plaintiff is not present, it shall be the duty of the justice of the peace to continue such ease until the next term of said court. Nothing in this section contained shall apply to suits against administrators and executors on contracts of their deceased testators and intestates.” In construing this section it was held, in Peeples v. Sethness Company, 119 Ga. 777 (47 S. E. 170), that, “Where a verified account is attached to the summons in a justice’s court and served, on the defendant personally, the affidavit, performs the office of evidence, and the plaintiff is entitled to a judgment unless a verified defense is filed.” It is plain from this decision, as well as from the statute itself, that the counter-affidavit, denying the justice and fairness of the account or any part of it, must be reduced to writing and filed. The plea must be in writing. If the written affidavit is not signed, the plea is amendable, to the extent that the answer may be sworn to. Barnes v. Coker, 112 Ga. 137 (37 S. E. 104). In the Barnes case Judge Cobb, delivering