O.C.G.A. § 9-10-110 (2019)

Annotations

JUDICIAL DECISIONS Purpose of section. - Evident purpose of this section is that nothing putting in motion the extraordinary powers of the court should be done by the judge until the application for the exercise of such powers has been vouched for by some kind of proof or verification; a rule nisi on such a petition is as much a part of the equitable relief or remedy sought as a restraining order or one appointing a receiver. Kilgore v. Paschall, 202 Ga. 416, 43 S.E.2d 520, 1947 Ga. LEXIS 456 (1947) (see O.C.G.A. § 9-10-110). O.C.G.A. § 9-10-110 does not apply to petitions for condemnation. Chester v. State, 168 Ga. App. 618, 309 S.E.2d 897, 1983 Ga. App. LEXIS 2869 (1983). Amendment offered on final trial need not be verified. - This section relates to preliminaries, such as sanction, filing, and interlocutory hearing, and does not require that an amendment offered on final trial shall be verified. Jacobs v. Rittenbaum, 193 Ga. 838, 20 S.E.2d 425, 1942 Ga. LEXIS 501 (1942) (see O.C.G.A. § 9-10-110). Petitions for a restraining order, injunction, or other extraordinary equitable relief must be verified. Harvard v. Walton, 243 Ga. 860, 257 S.E.2d 280, 1979 Ga. LEXIS 1459 (1979). Failure to verify a petition is an amendable defect. Harvard v. Walton, 243 Ga. 860, 257 S.E.2d 280, 1979 Ga. LEXIS 1459 (1979). Although medical LLCs’ petitions for a temporary restraining order and interlocutory injunction against a doctor’s widow were not verified as required by O.C.G.A. § 9-10-110, the trial court found satisfactory proofs supported the granting of these orders and the trial court allowed the LLCs to perfect the record by filing a verification as an amendment to their motion. Davis v. VCP South, LLC, 297 Ga. 616, 774 S.E.2d 606, 2015 Ga. LEXIS 488 (2015). Verified petition amendable by unverified amendment. - There is authority for the proposition that a verified petition may be amended in some respects by an unverified amendment. Harvard v.

Walton, 243 Ga. 860, 257 S.E.2d 280, 1979 Ga. LEXIS 1459 (1979). Verification that allegations are true to best of affiant’s belief insufficient. - Verification of a petition by a person to the effect that the allegations contained therein are true and correct to the best of the person’s information and belief, is not a positive verification as contemplated by this section. Kilgore v. Paschall, 202 Ga. 416, 43 S.E.2d 520, 1947 Ga. LEXIS 456 (1947); Carter v. Hayes, 214 Ga. 782, 107 S.E.2d 799, 1959 Ga. LEXIS 340 (1959); Stinchcomb v. Hoard, 221 Ga. 77, 143 S.E.2d 174, 1965 Ga. LEXIS 387 (1965) (see O.C.G.A. § 9-10110). Insufficiently verified petition supportable by other proofs. - Where the verification of a petition for injunction is not in positive terms, but only to the best of the applicant’s knowledge, information, or belief, the trial judge may exercise judicial discretion and permit the petition to be supported by “other satisfactory proofs.” Kilgore v. Paschall, 202 Ga. 416, 43 S.E.2d 520, 1947 Ga. LEXIS 456 (1947). Director of the Environmental Protection Division of the Georgia Department of Natural Resources sought an injunction against a permittee for allegedly violating its permit and the Georgia Water Quality Control Act, O.C.G.A. § 12-5-20 et seq. Although the sworn verification filed with the complaint pursuant to O.C.G.A. § 910-110 was not phrased in positive language, dismissal of the complaint was not required because the Director submitted “other satisfactory proofs” in support of the complaint. Agri-Cycle LLC v. Couch, 284 Ga. 90, 663 S.E.2d 175, 2008 Ga. LEXIS 546 (2008). Petition may be verified by attorney. - While this section states that petition shall be verified by the petitioner, where an attorney swears positively to the effect that the recitals of fact in the petition are true, this is a sufficient verification; thus, a petition positively verified by the attorney is one “supported by other satisfactory proofs.” Kilgore v. Paschall,

202 Ga. 416, 43 S.E.2d 520, 1947 Ga. LEXIS 456 (1947) (see O.C.G.A. § 9-10110). Unverified petition curable by amendment at interlocutory hearing. - Where the original petition for injunction was not verified as required by this section, the court did not err in allowing this defect to be cured by amendment at the interlocutory hearing. Pratt v. Rosa Jarmulowsky Co., 177 Ga. 522, 170 S.E. 365, 1933 Ga. LEXIS 344 (1933) (see O.C.G.A. § 9-10-110). Unverified petition for injunction not dismissible as matter of law. - The fact that a petition for injunction is not verified as required by this section does not as a matter of law demand its dismissal, but the petition may be retained in court and an injunction granted thereon, where “other satisfactory proofs”

are submitted. Bracewell v. Cook, 192 Ga. 678, 16 S.E.2d 432, 1941 Ga. LEXIS 602 (1941); Harper v. Atlanta Milling Co., 203 Ga. 608, 48 S.E.2d 89, 1948 Ga. LEXIS 391 (1948); Edwards v. Edwards, 227 Ga. 307, 180 S.E.2d 358, 1971 Ga. LEXIS 680 (1971) (see O.C.G.A. § 9-10-110). Sworn petition and answer serve as both pleadings and evidence on application for injunction where there is no other evidence. Salter v. Ashburn, 218 Ga. 62, 126 S.E.2d 404, 1962 Ga. LEXIS 430 (1962). Petition to have one held in contempt for failure to pay alimony may be unverified. - A petition seeking to have a husband held in contempt of court for failure to pay alimony need not be verified. Brown v. Olen, 226 Ga. 492, 175 S.E.2d 838, 1970 Ga. LEXIS 572 (1970).

RESEARCH REFERENCES Am. Jur. 2d. 61B Am. Jur. 2d, Pleading, §§ 181 et seq., 771 et seq. Am. Jur. Pleading and Practice Forms. 5A Am. Jur. Pleading and Practice

Forms, Captions, Prayers, and Formal Parts, § 606. ALR. Perjury in verifying pleadings, 7 A.L.R. 1283.