Mellon Bank, NA v. Coppage, 34290

34290 | Ga. | Feb 27, 1979

243 Ga. 219" date_filed="1979-02-27" court="Ga." case_name="Mellon Bank, NA v. Coppage">243 Ga. 219 (1979) 253 S.E.2d 202" date_filed="1979-02-27" court="Ga." case_name="Mellon Bank, NA v. Coppage">253 S.E.2d 202

MELLON BANK, N. A.
v.
COPPAGE.

34290.

Supreme Court of Georgia.

Submitted December 29, 1978. Decided February 27, 1979.

Memory & Thomas, Terry A. Dillard, for appellant.

J. Laddie Boatright, Elsie Higgs Griner, for appellee.

NICHOLS, Chief Justice.

This court granted certiorari to review the ruling of the Court of Appeals that a writ of possession is void ab initio where the oath required by Code Ann. § 67-702 is made before a notary public but later properly verified by amendment.

Since the adoption of the Civil Practice Act (Ga. L. 1966, p. 609), the courts of this state have held that the failure to verify is an amendable defect. Wall v. Mills, 126 Ga. App. 149" date_filed="1972-04-11" court="Ga. Ct. App." case_name="Wall v. Mills">126 Ga. App. 149 (1) (190 SE2d 146) (1972); Rigby v. Powell, 233 Ga. 158" date_filed="1974-11-05" court="Ga." case_name="Rigby v. Powell">233 Ga. 158 (2) (210 SE2d 696) (1974). The amendment was filed prior to the pre-trial order. It thus could be filed as a matter of right. Code Ann. § 81A-115 (a).

The improper verification of the petition was an amendable defect under the Civil Practice Act, and the Court of Appeals erred in holding the petition void ab initio. Anything to the contrary in Jordan v. Ford Motor Credit Co., 141 Ga. App. 280 (233 SE2d 256) (1977) is specifically disapproved and will not be followed.

Judgment reversed. All the Justices concur, except Undercofler, P. J., who dissents.