Head v. Marietta Guano Co.

124 Ga. 983 | Ga. | 1906

LuMRKiN, J.

(After stating the facts.) An appeal bond is amendable. Civil Code, §5123. Where the clerk of the superior court made a mistake in writing the Christian name of an appellant, it was held amendable. Chappell v. Smith, 17 Ga. 68. Indeed, great latitude of amendment has been allowed in perfecting appeals which were entered by the proper party but in an irregular manner. Hendrix v. Mason, 70 Ga. 523; Selma, Borne & Dalton R. Co. v. Gammage, 63 Ga. 604. But this latitude has never reached the point where it has been held that a party who did not except to a judgment could do so afterward by amendment, or that an appeal by one person could be changed by amendment into an appeal by another. The Marietta Guano Company never appealed at all. The appeal entered did not mention them, nor did Phillips purport to be entering it for them. By mistake Phillips appealed from a judgment against his employer. The security on the appeal never contracted to become security for the guano company, but only for Phillips. The amendment left a new appellant, with no bond. It may have been an unfortunate oversight that a person attempted to enter an appeal who had no authority in law to do so; but it is beyond the reach of amendment, even under our liberal system, to entirely change the appellant. Nor can this be accomplished by first inserting the desired appellant as the usee and then striking the real appellant and leaving the usee to stand, alone. See Morgan v. Cohutta, 120 Ga. 423; Arnold v. Wells, 6 Ga. 380. The writer is aware- of but one instance in which this compound method of amendment was proposed, and then it was held not to be permissible. Norris v. Pollard, 75 Ga. 358 (4, 5.). A somewhat similar misfortune befell eminent counsel in moving for a new trial and bringing the case to this court in Central Railroad v. Craig, 59 Ga. 185. A verdict was rendered against the Southwestern Railroad Company. A motion for a new trial was made in the name'of the Central Railroad and Banking Company of Georgia. Upon its refusal the movant excepted. The writ of error was dismissed, and an amendment was refused. Later the Southwestern Railroad Company made an extraordinary motion for a new trial, and also filed a bill in equity praying for a new trial; but it was held that there was no good ground for either, although it appeared that the Central Railroad and Banking Company was the lessee of the Southwestern Railroad and was the real party principally interested,' and that when counsel made out the motion for a new trial and the bill of exceptions, they were by mistake made in the name of the lessee company instead of in that of the lessor. Southwestern Railroad Co. v. Craig, 62 Ga. 361.

The questions of practice in this court are sufficiently.dealt with in the headnotes.

Judgment reversed.

All the Justices concur.