Harris v. Daly

Lamar, J. (After stating the facts.) In the argument here it was contended that on the authority of Colbert v. State, 118 Ga. 302, the certiorari was properly overruled. It was insisted that the answer of the justice did not verify the petition, nor was there otherwise any statement of what occurred on the trial. The defendant made no motion to dismiss because the answer was insuf [513] ficient, though he did traverse the return in so far as it related to the testimony of the witness Orr. On this traverse the justice filed a supplemental answer setting out more in detail the testimony of this witness. The original answer of the justice was brief, but it substantially verified the allegations in the petition. There was no suggestion, as in Colbert v. State, 118 Ga. 302, that the officer was unable to remember whether it was correct or not. Some of the paragraphs are absolutely verified. The only one which is even subject to criticism is that relating to the evidence referred to in the third paragraph, as to which the justice answered that it contains “the evidence as near as [he] could state it from memory.” This was not a statement that he could not recollect the testimony, but rather that his memory of what transpired corresponded with that of the defendant. Civil Code, § 4646. The petition being therefore verified, it could not have been overruled for want of a proper answer. The record presents no question as to the sufficiency of -the pleadings, or as to the right of the defendant to rescind.' But from the verdict it appears not only that the plaintiff was not allowed to recover on the note, but that the jury found that she should repay the defendant the amount previously received on account of the purchase of the animal. So far as the pleadings and verdict show, the defendant is relieved from liability on the note, gets, back the amount paid on account of the purchase, and also retains the animal. There is no suggestion that it was worthless. In any view of the case a new trial should have been ordered. Rescission involves the necessity of restitution of parties to the condition before the contract was made. Civil Code, §§ 3711, 3712. Judgment reversed. . All the Justices concur.