O.C.G.A. § 9-10-112 (2019)

Annotations

JUDICIAL DECISIONS O.C.G.A. § 9-10-112 is not “faulty” for conflicting with O.C.G.A. § 9-118(b). - Code Section 9-10-112, as the more specific statute, prevails over § 911-8(b). Baylis v. Daryani, 294 Ga. App. 729, 669 S.E.2d 674, 2008 Ga. App. LEXIS 1190 (2008), cert. dismissed, No. S09C0555, 2009 Ga. LEXIS 123 (Ga. Mar. 9, 2009). Essential elements of defendant’s plea. - 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 admits. Walker v. Seawell, 42 Ga. App. 511, 156 S.E. 475, 1931 Ga. App. LEXIS 35 (1931). Business owner filed a verified complaint on an open account against the defendants. As the defendants’ answer did not deny specifically, as required by O.C.G.A. § 9-10-112, that the defendants were indebted to the owner in any sum or allege any specific amounts that the defendants were indebted to the owner, the answer had to be stricken. Baylis v. Daryani, 294 Ga. App. 729, 669 S.E.2d 674, 2008 Ga. App. LEXIS 1190 (2008), cert. dismissed, No. S09C0555, 2009 Ga. LEXIS 123 (Ga. Mar. 9, 2009). Plea alleging payment to plaintiff of portion of account at issue improper. - Where the plaintiff’s petition 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. Walker v. Seawell, 42 Ga. App. 511, 156 S.E. 475, 1931 Ga. App. LEXIS 35 (1931). In action on an open account, pleas of payment, setoff, and recoupment are special pleas. Wilkes v. Arkansas Fuel Oil Co., 60 Ga. App. 775, 5 S.E.2d 269, 1939 Ga. App. LEXIS 173 (1939). Plea specifically denying all allegations not dismissible. - When a petition in one paragraph alleges that the defendant “is indebted” to the plaintiff “upon an open account,” setting forth a copy thereof, and in another paragraph alleges that, although the account is past due, the defendant refuses to pay the same, an answer which in terms specifically denies all the allegations in these paragraphs is good and ought not to be stricken on demurrer (now motion to dismiss). Wilkes v. Arkansas Fuel Oil Co., 60 Ga. App. 775, 5 S.E.2d 269, 1939 Ga. App. LEXIS 173 (1939). Failure to verify merely relieves the defendant of the requirements of this section. Braswell v. Hodges, 95 Ga. App. 231, 97 S.E.2d 588, 1957 Ga. App. LEXIS 761 (1957) (see O.C.G.A. § 9-10112). Dismissal of the answer is appropriate where the denial is general but fails to deny indebtedness in any sum or to specify any amount of indebtedness. Riverdale Beverage Corp. v. Brick & Whalen, 162 Ga. App. 516, 292 S.E.2d 98, 1982 Ga. App. LEXIS 2203 (1982). Dismissal inappropriate. - Trial court lacked the authority to involuntarily

dismiss the case, without a hearing or trial, merely because the law firm failed to make a prima facie showing on the firm’s open account claim. Fisher & Phillips, LLP v. Amerex Envtl. Techs., Inc., 332 Ga. App. 261, 772 S.E.2d 59, 2015 Ga. App. LEXIS 276 (2015). Plea failing to satisfy requirements of section demurrable. - Where action is brought on a verified open account and the defendant’s plea fails to either deny that the defendant is indebted in any sum or to specify the amount in which the defendant admits the defendant may be indebted, the court properly strikes such plea. Nelson v. Mexicana de Jugo y Sabores, 139 Ga. App. 612, 229 S.E.2d 102, 1976 Ga. App. LEXIS 1906 (1976). Account not verified. - In an action on account against a corporation and an individual defendant because the account was not verified as to the individual defendant’s liability, the trial court was not authorized to apply the pleading requirements of O.C.G.A. § 9-10-112 to the individual defendant. Harper v. Carroll Tire Co., 237 Ga. App. 767, 516 S.E.2d 811. Retail installment contract for purchase of automobile. - After the plain-

tiff filed a verified complaint, the trial court erred in granting the plaintiff’s motion to strike the defendant’s unverified answer and for judgment on the pleadings as the retail installment contract for the purchase of an automobile was not the type of contract that was the appropriate subject matter for a suit on an open account, and the defendant was not required to verify the defendant’s responsive pleadings because retail installment transactions were expressly excluded from the definition of a commercial account; and the contract provided a number of remedies to the plaintiff in the event of nonpayment by the defendant that deviated from the traditional understanding of what constituted an open account. Scott v. Prestige Fin. Servs., 345 Ga. App. 530, 813 S.E.2d 610, 2018 Ga. App. LEXIS 223 (2018). Counterclaim. - Validity of a counterclaim was not affected by the failure to comply with O.C.G.A. § 9-10-112. Riverdale Beverage Corp. v. Brick & Whalen, 162 Ga. App. 516, 292 S.E.2d 98, 1982 Ga. App. LEXIS 2203 (1982).

RESEARCH REFERENCES Am. Jur. 2d. 61B Am. Jur. 2d, Pleading, §§ 181 et seq., 771 et seq.

C.J.S. 71 C.J.S., Pleading, §§ 486, 488.