J. L. Cowart as administrator of the estate of W. H. Waters, deceased, brought his action in Tattnall superior court against Mrs. Eugenia Durrence, Alex Waters, Jane Sands, Vashti Kieklighter, and Queen Waters (thе four last named being children of Eugenia Durrence), for partition of a tract of land containing 150 acres, more or less. This action was filed in court on September 26, 1922. On February 10, 1923, Cowart, administrаtor, brought his action against Eugenia Durrence and one other, asking for an injunction to restrain waste; and defendants having answered this suit, it was, by consent of all parties and by order of the cоurt, consolidated with the first case filed and both cases tried together. The two 'cases thus consolidated into one were tried on April 25, 1924. The plaintiff in error, Mrs. M. L. Durrence (the same persоn as Mrs. Eugenia Durrence), offered an amendment, which was disallowed, except as to one paragraph; and she filed her exceptions pendente lite to the disallowance of the same. When the evidence was all in, the court directed the jury to return a verdict for the plaintiff for a one-seventh interest in the 150 acres, and this the jury did; and a decree was duly
A motion is made in this court to dismiss the writ of error upon several grounds. First, upon the ground that it appears from the record that the motion for a new trial was made on the same day upon which the verdict was rendered; that is, on the 35th day of April, 1934, and the decree in the case was not rendered and signed by the court until the 30th day of April, 1934. This ground is without merit. The motion for new trial was made in accordance with the statute contained in the Civil Code, § 6089, which provides, in part, that all applications for a new trial, except in еxtraordinary cases, must be made during the term at which the trial was had; and when the term continues longer than thirty days, the application shall be filed within thirty days from the trial, etc. In the case of Castellaw v. Blanchard, 106 Ga. 97 (
The next ground relied on in support of the motion to dismiss is that there were several defendants in the ease, and only one, Mrs. Durrencе, the plaintiff in error, made the motion for a new trial, and that the other defendants were not joined in the bill of 'exceptions with the plaintiff in error. “Where, in a suit against two codefendants, the verdict and judgment are adverse to the defendants, and one of them makes a motion for a new trial, which is overruled, the movant can except to the judgment overruling his motion, and bring the сase to the Supreme Court without making the other defendant a party to the bill of exceptions; and a failure to do so will not work a dismissal of the writ of error. Ruffin v. Paris, 75 Ga. 653; Jordan v. Gaulden, 73 Ga. 191.” Turner v. Newell, 129 Ga. 89 (
Pending the trial of the ease, the plaintiff in error offered the follоwing amendment to her answer theretofore filed:
“1. That her title to the premises in dispute has, if ever defective, become a perfect title by prescription, in that this defendant, together with her husband, Simon A. Waters, have been in open, adverse, peaceable, and continuous possession, under claim of right, of the premises in dispute since same were convеyed to said Simon A. Waters by J. P. Waters et al. in 1880; and also because said premises were set aside to this defendant as a year’s support as widow of Simon A. Waters in 1886, since which time she has held sаme adversely and continuously under said right of year’s support, all of which was more than seven years before any of the suits of plaintiff were instituted or begun.
“2. That the rights of plaintiff as to said prоperty, or 100 acres thereof, claiming as heirs at law of J. W. Waters, deceased, have been adjudicated by an action in ejectment heretofore filed in this court by Jno. W. Waters, аdministrator of Jno. W. Waters, deceased, against this defendant, filed to the January term, 1917,*674 and finally determined by verdict in favor of this defendant on January 11, 1919/ which suit involved the 100 acres of the land in dispute, аnd in which said John W. Waters, administrator- of John W. Waters, represented all heirs of John W. Waters, deceased, including the plaintiff. Copy of which proceedings, which are voluminous, is not attachеd, but tendered herewith to the court.
“3. That plaintiff has no right and title to said property, because same, if any ever existed, has been transferred to J. L. Cowart individually and W. T. Burkhalter, and they now own same, if any one does besides defendant, which defendant denies.
“4. That there is no necessity for the suit for recovery of the plaintiff administrators, and no right therefor under the law.
“5. Defendant further аmends by alleging that the improvements upon said property erected by this defendant since her possession in good faith amount to at least $5,000.00 to $6,000.00, and defendant hereby changes the amount of said improvements as alleged in the original plea from $4,000.00 to $5,000.00 to $6,-000.00.”
This amendment was accompanied by an affidavit that complied with the requirements of the Civil Code, § 5640, which relatеs to the verification of an amendment to an answer of the defendant. It does not appear that there was any special demurrer to the amendment or any paragraph thereof, but the court passed an order allowing the fifth paragraph and disallowing the others. This order, which disallowed paragraphs 1 and 2 of the amendment, was error. We are of the opinion that the paragraphs setting up a prescriptive title in defendant should have been allowed; and the paragraph setting up a former adjudication was in itself sufficient, in the absence of a special demurrer. If, in order to perfect the plea of res adjudicata, further allegations as to the record and judgment were desirable and necеssary to render that plea sufficiently definite, they should have been called for by special demurrer. In this part of the amendment the defendant sets up that the rights of the parties had been adjudicated in an action of ejectment theretofore filed in the same court in which the present case is pending by John W. Waters, administrator, etc., of J. W. Waters, deceased, against the demurrant, filed to the January term, 1917, and finally determined by a verdict in favor of this defendant on January 11,
Paragraphs 3 and 4 of the amendment are without merit, and the court did not err in disallowing them.
The court having disallowed material portions of the defеndant’s defense as contained in the amendment offered by her, all that took place on the trial subsequently was nugatory. It is therefore unnecessary to pass upon the rulings made by the court pending the trial.
Judgment reversed.