90 Ga. 826 | Ga. | 1893
Suit was brought against several persons on unconditional promissory notes, and at the first term the defendants appeared, and the name of their attorney was marked on the docket by the court, and the word “ Ans.” written opposite the case. No written or sworn
Where the plea of the general issue has been filed at the first term, it may be amended by filing other defences at the trial term. Howard v. Simpkins, 70 Ga. 322. Answering the case and having the name of defendant’s counsel marked on the docket at the appearance term is equivalent to filing a plea of the general issue, and this plea may be subsequently amended by adding other defences. Simon v. Myers & Marcus, 68 Ga. 74; Russell, ex'r, v. Hubbard, 76 Ga. 618. In the latter case it was ruled that: “ Where there has been an entry of answer on the docket at the return term of the writ, the general issue shall be considered as filed, and that plea may be amended by filing others as a matter of right, without delay and without the payment of costs, except such as the court, in his discretion, may compel the amending party to pay his adversary, where there has been negli
The right to make an amendment at the second, or trial term, seems to be plain; and as the amendment in question was filed on the very first day of that term, before the case was called, and insisted upon when the ease was reached for trial, we do not perceive how the defendants could at this term have been more diligent. It seems from the cases cited, that they were not bound to file their special defences at the first term, nor is there any rule requiring defences to be filed in vacation before the second term. ¥e are therefore clear that the trial judge erred, under the facts presented, in requiring the payment of costs as a condition precedent to allowing the amendment. It seems that he treated the case as in default; but if he did so, this was erroneous because, as already seen, it stood as if the plea of the general issue had been regularly filed at the first term. It may be that legislation is needed on this subject, and that it would be wise to require defendants in civil cases to file at the first term all of their defences, unless prevented by some good reason from so doing ; but we cannot, until such legislation has been enacted, do otherwise than enforce the law as it now stands under the statutes and decisions of this court applicable. Under section 8479 of the code, all parties may, as matter of right, amend their pleadings, etc., and as ruled in Strange, adm’r, v. Barrow et al., 65 Ga. 23, “there is no necessity for any action of the judge on an amendment except where the rights of the opposite party are to be affected by the negligence of the amending party.” It