34 Ga. App. 281 | Ga. Ct. App. | 1925
1. Only defensive matter to a foreclosure of a lien on personalty being required in a counter-affidavit filed by the defendant under section 3366 (6) of the Civil Code (1910), such an affidavit, when made by the defendant’s agent, as provided in section 3607 of the Civil Code (1910), need not contain a sworn averment that the affiant is agent for the defendant. It is sufficient if such affidavit is in fact made by the defendant’s duly authorized agent, and where the affidavit purports on its face to be executed by such agent, the agency is presumed and the affidavit is prima facie valid. See, in this connection, New York Life Ins. Co. v. Rhodes, 4 Ga. App. 25 (60 S. E. 828); Georgia-Alabama Business College v. Constitution Publishing Co., 8 Ga. App. 348 (69 S. E. 34).
2. Where the defendant in such a -proceeding is the Georgia Lumber Company, a counter-affidavit filed by the defendant which recites, “Personally appeared . . Georgia Lumber Company, per Paul A. Bowden, its president, who on oath says,” etc., and which sets out defensive matter, and which is signed “Georgia Lumber Company, per Paul A. Bowden, Pres.,” and which contains a jurat that it is “sworn to and subscribed before me” upon a particular date, signed by an officer authorized to administer oaths, is the personal affidavit of Paul A. Bowden, who is presumably the president of the Georgia Lumber Company, presumably a corporation, and who therefore is authorized to make the affidavit. Civil Code (1910), § 5638; Bennett & Co. v. Gray, 82 Ga. 592 (9 S. E. 469) ; Silver Peak Mines v. Hanchett, 80 Fed. 990; American Agricultural Chemical Co. v. Bank of Madison, 32 Ga. App. 473 (123 S. E. 921) ; Greene v. Lombard, 33 Ga. App. 518 (126 S. E. 890).
3. The court erred in striking the defendant’s counter-affidavit in each ease.
Judgment reversed.