Hart v. Henderson

66 Ga. 568 | Ga. | 1881

Jackson, Chief Justice.

The complainant filed a bill against the 'defendant alleging that her husband, as her agent, had purchased a house .and lot for her from him, and had been deceived iu various ways by his misrepresentations ; that she had moved or was about to move to Rome, and defendant was about to sell or otherwise interfere with her property, so as to prevent her from renting the house or using it herself ; that she had paid its full value, etc., etc., and she prayed that defendant be enjoined from interfering with the house in any way, and be decreed to make her a title to it in the event she had paid its value, If not, op her paying the difference; and if she had paid more than the value, then to pay her the overplus.

The bill was answered, swearing off all the allegations •of any equity therein, and setting up the fact that the husband of complainant bought for himself, and not for the wife, and denying any interest of hers in the trade.

Thereupon, an amendment v^as offer.ed and service acknowledged, striking out .the entire.charging, and stating part of the bill, incl uding the prayer for relief, and inserting allegations that defendant knew that her money, to the amount $450.00 had been paid by her husband for the house in part, and praying that defendant pay it back toiler. On the hearing, this amendment was stricken, and complainant excepted.

It appears to have been offered and filed in the clerk’s-office in .March, 1879, no orcler of court allowing it was had, though service was acknowledged upon it, reserving the right to demur or answer at a subsequent term.

Appended to the amendment is a withdrawal of that part of it which strikes out any part of the original bill.

1. Under the facts, the motion to strike this-amendment came in time. No order appears allowing it, and when service was acknowledged upon it the defendant’s counsel expressly reserved the right to demur, and time to do so.

2. The amendment ought to have been stricken as first drawn. To strike out a whole bill except the names of parties and put in another, cannot be allowed. Indeed, a sworn bill cannot be amended by striking out any allegation therein for obvious reasons. 11 Ga., 539. But at some time or other the striking out part of the amendment was withdrawn, so that when it was disallowed that may, perhaps, be considered as not in the amendment. That not being in, did it present a new course of action distinct from that set out in the original bill? The original bill was filed to obtain an injunction to prevent the defendant from interfering in any way with complainant’s property purchased for her, and to have title deeds thereto made to her, she being in possession. The amendment abandons all title to the house and lot, and sets up only that defendant has received knowingly from her husband her money, and seeks its recovery back. There is no prayer for discovery. It is waived. This could as well be recovered by law. There is no equity in it. It makes not only a new, but a common law cause of action, and was properly stricken. 14 Ga., 320.

It was then proposed to amend the prayer of the bill, which was also refused. It is simply a prayer to recover the money of complainant which defendant had received, with interest thereon, if she could not have a deed decreed to be made to her. Substantially it is the same as the other. The husband had a right to use her money with her consent, and there is no pretense that she did not assent to its being so used. On the contrary, she thought the property was to be hers. Any way it is a different cause of action, distinct from the whole substance of the original bill.

3. The court then granted a non-suit. Clearly there was no evidence on which a decree could be had for complainant as the pleadings then stood, and the non-suit was equivalent to a motion to dismiss, which should have been granted. There is, strictly speaking, no such thing as a non-suit in equity causes, but as the result is the same as the dismissal of complainant’s bill because no recovery could be had on it under the testimony, this court will not quibble on words but let the judgment stand.

Judgment affirmed.