Christian v. Ross

145 Ga. 284 | Ga. | 1916

Dissenting Opinion

Evans, P. J., and Lumpkin, J.,

dissenting. In Ellison v. Georgia R. Co., 87 Ga. 691 (13 S. E. 809), the subject of amendment received a full consideration. It was declared that “Scarcely any right of procedure is more important to suitors or more frequently called into exercise in actual practice than that of amending their pleadings. Amendment is a resource against waste.” It was held, that, “when the amendment needed is one of substance itself, ‘enough to amend by’ does not mean the same as ‘enough to be good in substance without amendment.’ On the contrary, failing to be good in substance is generally the reason why amendment of substance is needed. ‘Enough to amend by’ is to be determined by what is enough relatively to the particular amendment needed and offered.” The necessity for this discussion arose in large part from an erroneous ruling in Martin v. Gainesville &c. Railroad, 78 Ga. 307, and other cases which followed it. Objeftions to material amendments to petitions were repeatedly (indeed almost always) made, on the grounds that the amendment added a new cause of action to the original petition, and that there was nothing in the petition to amend by. In some cases decisions were rendered which did no"t adhere closely to the ruling in the Ellison case. The decision in that case was substantially repeated in City of Columbus v. Anglin, 120 Ga. 785 (48 S. E. 318). In Eagle & Phenix Mills v. Muscogee Mfg. Co., 129 Ga. 712 (59 S. E. 804), the writer of the opinion said: “This whole question of amendment has been so thoroughly discussed in Ellison v. Georgia R. Co., 87 Ga. 691 (13 S. E. 809), and City of Columbus v. Anglin, 120 Ga. 785 (48 S. E. 318), that little more can be done than to cite and apply those decisions. There are cases in which rulings have been made not in harmony with the two just cited. But, speaking in general terms, they may be divided into two classes, — those which preceded the Ellison case and were overruled by it, and those which came after it and were overruled by the Anglin case. And now the rule has been crystallized into a section of the code. We have no disposition to wander again, certainly not intentionally, from a rule which looks to substance more than to mere form, which treats amendment as ‘a resource against waste,’ where there is enough to amend by, and which has in view the practical administration of justice rather than the dialectical niceties of ancient pleading.” The section mentioned now appears in the Civil Code of 1910 as section 5682, and reads as follows: “A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, is enough to amend by. The jurisdiction of the court may be shown, and the details and circumstances of the particular transaction may be amplified and varied by amendment. If the declaration omit to allege facts essential to raise the duty or obligation involved in the cause of action which was evidently originally intended to be declared upon, the omitted fact may be supplied by amendment.”

In the instant ease there was an effort to cancel a deed, a part of the consideration of which was alleged to be an agreement by the grantee to pay to the grantor during her life a stipulated sum monthly, and also an assumption of an encumbrance. A failure to discharge the encumbrance or to pay the stipulated sums monthly was alleged. In the original petition there were allegations tending to show abuse of confidence placed in the defendant by the plaintiff, who relied on his agreement and promise and believed that it was for her best interest to be relieved of the burden of looking after the farm and to receive a monthly allowance for her support. In an amendment insolvency of the defendant was alleged. In the amendment now under consideration there were fuller allegations of feebleness of intellect and fraud by the defendant. We can not agree that there could not be such an amendment. The case is not controlled by that of Brand v. Power, cited in the majority opinion; and if it were, in so far as that case is in conflict with the earlier and later cases of Ellison and Anglin and eases following them, and with the code, it must yield to them. See Lindsey v. Lindsey, 62 Ga. 546 (2); McCardle v. Kennedy, 92 Ga. 198 (17 S. E. 1001, 44 Am. St. R. 85); Jones v. Williams, 132 Ga. 782, 784 (64 S. E. 1081); Wood v. Owen, 133 Ga. 751 (3), 752 (66 S. E. 951); Georgia Railway & Electric Co. v. Reeves, 123 Ga. 697 (51 S. E. 610); Seaboard Air-Line Ry. v. Jackson, 138 Ga. 54 (2) (74 S. E. 775).

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Lead Opinion

Beck, J.

(After stating the foregoing facts.) The issues made by the pleadings in this case are covered by the decision and rulings in the case of Brand v. Power, 110 Ga. 522 (36 S. E. 53). The syllabi in that ease, which constitute the headnotes in this case, show the substance of the ruling; and the decision which elaborates that ruling renders further discussion of the questions here unnecessary.

Judgment reversed.

All the Justices concur, except