107 Ga. 733 | Ga. | 1899
Tbe petition of plaintiffs in error in this case discloses, among other things, substantially tbe following facts: Larkin A. Allen died in the year 1864, leaving a will in which, as claimed in the petition, all of tbe property of the testator was given to his wife for life or widowhood, and at her death or marriage it was to be equally divided among their children. The wife died in July, 1895, since which time there has been a division of the real estate among the children. The realty consisted of divers lots of land situated in the sixth district of Carroll county, among which was lot number 57. The plaintiffs, five in number, were children of the testator, and there were four other children still living at the time the suit was brought, three of whom were not parties to the action. The suit was brought against Josie Stephens, one of the children, and alleged, in effect, that prior to the division of the realty the defendant sold off of lot number 57, to the Southern Bed Spring Company of Atlanta, Fulton county, Georgia, under a contract she had with that company, a large amount of timber, as represented in the contract; that under the contract the company went upon said lot and cut therefrom a large amount of timber,
This case was here before, and is reported in 102 Ga. 596. It was brought here by the plaintiffs, who complained of error in the judgment of the court sustaining a demurrer to their petition. We may therefore regard it as settled by an adjudication of this court that the original petition set forth a good cause of action. The sole question presented by this record is whether or not the court erred in refusing the amendment offered by the plaintiffs to their petition, and in granting a non-suit. It is contended that this amendment set forth a new and
We think this case falls directly under the principle well recognized in the law of amendments and announced in the following language quoted from 1 Enc. PI. & Pr. 485-6: “Where upon the hearing it appears clearly from the evidence that the plaintiff has a case which entitles him to relief, but which by reason of some defect or omission in the charges or allegations of the bill is not brought fairly within the issue, he will be permitted to adapt the allegations of the bill to the case as proved; especially where the facts were known to the defendant, but were not disclosed in the answer or discovered by the plaintiff until after the production of the evidence.” It is certainly fair to presume that this defendant was aware of what particular lot furnished this timber, what specific timber she sold to the purchaser named in the petition, and the exact amount she obtained therefor. Considered in the light of the entire allegations in the petition, it is hardly possible, under the facts set forth, that the defendant could even have claimed a surprise by the amendment offered. A fair construction of
The decision relied upon by counsel for defendant in error, in Smnmerour v. Felker, 102 Ga. 254, we do not think at all in point. There it appeared that the distress warrant alleged that land for which rent was due was situated in one county, and the amendment proposed was to strike out the name of the county first alleged and insert that of another county. The reason why the amendment was not allowed was because it did not appear from the pleadings or otherwise that the land described in the amendment was the same land referred to in the original affidavit. If the amendment proposed had introduced an entirely different tract of land, then necessarily the right of action must have depended upon an entirely different contract between the parties from that which must have been the basis of the first proceeding. We doubt not this court would have ruled, had it appeared that there was simply a mistake in the first affidavit of alleging the wrong county, that if the amendment proposed to collect rent from the same
We conclude, therefore, that the court below erred in refusing the amendment offered in this case, and in granting a nonsuit.
Judgment reversed.