
    52867.
    DIVERSIFIED GROWTH CORPORATION v. EQUITABLE LEASING CORPORATION.
    Argued October 6, 1976
    Decided November 19, 1976.
    
      Arnall, Golden & Gregory, Thomas R. Todd, Jr., for appellant.
    
      D. Freeman Hutton, for appellee.
   Bell, Chief Judge.

Plaintiff brought suit to recover on three written contracts for the lease of personalty. A judgment in favor of the plaintiff was entered and defendant appeals. Held:

Defendant complains that the trial court erred in admitting into evidence the original contracts on which this claim was based. The objection made was that the execution had not been proven as plaintiff had not produced a subscribing witness as required by Code § 38-706. The statute requires that the subscribing witness "shall be produced in all cases” except in five cases of which none apply here. While plaintiff did not comply with this rule of evidence, the contracts were nonetheless admissible, for two reasons. One, the defense of denial of the execution of the contract, or a plea of non est factum, must be made under oath as required by Code § 20-801. Defendant’s pleadings were not under oath. Where a proper plea of non est factum has not been filed, proof of execution of the instrument on which suit is based is not necessary. Lanier v. Waddell, 83 Ga. App. 423 (64 SE2d 79).

Judgment affirmed.

Clark and Stolz, JJ., concur.  