Watters v. Freeman Bros. , 16 Ga. App. 595 ( 1915 )

Wade, J.

To an action on a foreign judgment two separate pleas were •filed by the defendant on the same date: One contained a general denial of indebtedness on the part of the defendant and demanded proof of the corporate existence of the plaintiff. The other admitted the existence of the judgment sued upon, but denied its validity, on the ground that it had been obtained by perjury. On demurrer the court struck the pleas, and then entered judgment against the defendant. Held:

1. “A plea of general denial is equivalent, under the code system of pleading, to a plea of nul tiel record. This plea denies the existence .of the record of such a judgment as is declared on.” Little Rock Cooperage Co. v. Hodge, 112 Ga. 521 (37 S. E. 743).

2. “No part of an answer shall be stricken .out or rejected on account.of being contradictory to another part of the same, but the court shall suffer the whole answer to remain, if the defendant should desire it, and avail himself of any advantage he can or may have under either or the whole of said answer, and proceed to trial accordingly.” Civil Code, § 5649. ' ■

Decided July 29, 1915.

Action on judgment; from city court of Floyd county — Judge Reece. May 13, 1914.

Hutchens & Hutchens, for plaintiff in error. Lipscomb & Willingham, Nathan Harris, contra.

[a) The existence of the record sued upon being put in issue by the plea of general denial, the court erred in striking this plea on account of contradictory statements in the other plea, and in thereafter rendering judgment without the intervention of a jury. Judgment reversed.