114 Ga. 780 | Ga. | 1902
An action was brought in the superior court of Floyd county, by J. L. Holloway against the Equitable Building and Loan Association and Emma Avery, for the recovery of land and mesne profits. The plaintiff’s petition was framed under the “pleading act of 1893,” the provisions of which are now embraced in the Civil Code. The description of the property as set forth in paragraph 1 of the petition was as follows: “ That tract of land lying and being in the Hargrove’s subdivision of the Cothran and Chisolm addition to the City of Rome, Floyd County, Ga., known as lot number twenty-two (22) in said subdivision, fronting on Hill street seventy-five (75) feet, and running back with that equal
At the trial term when the case came on to be heard, an amendment to the answer which had been previously filed by the association was offered. At the top of this amendment, the case was stated, “ J. L. Holloway vs. Equitable Building & Loan Asso. and Emma Avery.” The document itself was signed by counsel for both defendants, and was in the following words: “First: Answering paragraph one of plffs. petition, defendant in the above-stated case says, that it is not in possession of the property, as set forth in said paragraph, but it is in possession of certain property in the Cothran & Chisolm addition of the City of Rome, Georgia, bounded on the north by the property of Crawford Wilson, and On the west
The amendment was rejected, and the following judgment was entered on the original answer of the association: “ The defendant, the Equitable Building & Loan Association, having filed the above disclaimer at the appearance term, it is ordered that said defendant be discharged from said case.” The court also entered upon the docket the words, “ In default as to Emma Avery,” and directed a verdict for the plaintiff against her for the premises described in the petition,” and $110 “rent and mesne profits.” The defendants thereupon sued out a joint bill of exceptions, in which they alleged that the court erred (1) in holding that the defendant Emma Avery was in default; (2) in adjudging that the original answer, which they contended set forth a good defense for them both as joint defendants, was a disclaimer by the association, and in refusing to allow it “to resist and defend as against plaintiff’s action;” (3) in disallowing the amendment to the answer offered at the trial term as “ a plea and answer of both defendants, [it having been] signed by the attorneys representing both; ” and (4) in directing the verdict against Emma Avery. We will deal with all of these exceptions, though not in the precise order in which they are set forth.
The other reason for upholding the court’s action in rejecting so much of the offer to amend as could be attributed to Emma Avery was, that as to the only substantial matters set up in the answer as a defense to the plaintiffs action, viz., a denial of the existence of the property sued for and a denial of liability for mesne profits, the original answer was sufficiently full and complete and needed no amendment. That the amendment offered really would have added nothing of consquenceto the original answer will, we think, more fully appear from our discussion of another point in the case. We are clear that there was no error, as against Emma Avery, in refusing to allow this amendment. The second of the reasons given in support of this conclusion is, of course, applicable to the exception taken by the association with reference to this matter.
As above indicated, we do not think the offered amendment to the answer would have improved it. The amendment begins by declaring, in answer to paragraph 1 of the plaintiff’s petition, that the defendant “is not in possession of the property as set forth in said paragraph, but . . is in possession of certain property ” which it proceeds to describe. A comparison of the description of the land the possession of which is admitted with the description embraced in the petition shows plainly that the two descriptions are not even in substance identical, and that it would be impossible to say the land described in the amendment is the same as that intended to be described in the petition. Indeed, the portion of the amendment to which we are now referring, to say the least, leaves this a matter of the greatest uncertainty. But the fourth paragraph of the amendment clears up this uncertainty by averring that the defendant “declines.to deliver the lands as described in plff’s petition to him, for there are no such.” It makes no difference that this paragraph adds that the averment just quoted is true because the plaintiff failed to properly describe certain land which the defendant declares it had purchased from one Crawford Wilson, who, according to the plaintiff’s petition, was one of the plaintiff’s predecessors in title. The fact remains that both in the original answer and in the amendment the defendant adheres to the statement that the plaintiff has not described any land in actual existence. Certainly the defendant neither admitted nor intended to admit possession of that which it declared did not exist at all. The case of Day v. Case, 78 Ga. 58, does not rule anything contrary to what is above laid down. There it was apparent that the petition and the plea referred to the same lot of land. There had, according to the plea, been at the instance of the State two surveys of the district in which this lot was situated, one in
Judgment reversed.