Heath v. Parker

33 S.E.2d 904 | Ga. | 1945

Where to a petition in the common-law form of ejectment, sufficient on its face, there was filed a "supplemental petition" which disclosed that one of the joint lessors, in the only demise pleaded, had conveyed the property in question to another before suit was filed, and the action was dismissed as to one of the four defendants upon his general demurrer, and the judgment of the trial court was affirmed by this court Heath v. Miller, 197 Ga. 443, 29 S.E.2d 416), and where, upon the return of the case to the trial court, the plaintiff simultaneously offered three amendments, the first striking the "supplemental petition," the second adding a new demise from the administrators of the grantee under the conveyance above referred to, and the third amending a demise so as to proceed in the names of the heirs of another joint lessor who had died pending the suit, each of which amendments was allowed subject to demurrer, it was error to then strike each of such amendments on demurrer on the ground that there was not enough in the petition to amend by, and to dismiss on general demurrer the petition as thus amended.

No. 15088. MAY 9, 1945. Under the fictitious form of ejectment, an amendment is permissible laying a new demise, thereby bringing in a new cause of action and new parties.Jones v. Johnson, 81 Ga. 293 (6 S.E. 181); Roberts v.Tift, 136 Ga. 901 (72 S.E. 234); Deas v. Sammons,126 Ga. 431 (55 S.E. 170, 7 Ann. Cas. 1124); Pollard v. Tait,38 Ga. 439 (5), 443; Pierce v. Tidd (sub nom. Roe v.Doe), 30 Ga. 873; Jones v. Tarver, 19 Ga. 279 (6), 285;Neal v. Robertson, 18 Ga. 399; Powell on Actions for Land, § 117. Such an amendment, however, does not relate back to the time of filing the original suit, but the cause of action therein alleged is commenced when that cause of action is introduced into the declaration. Burbage v. Fitzgerald, 98 Ga. 582 (2, 3) (25 S.E. 554); Bentley v. Crummey, 119 Ga. 911 (47 S.E. 209); Willingham v. Long, 47 Ga. 540 (2).

Where one of the joint lessors, in whom a demise is laid in an action in the common-law form of ejectment, dies pending the action, the demise is amendable by substituting his sole heirs at law as parties, where it is shown that there is no administration on his estate. Towns v. Mathews, 91 Ga. 546 (1, 2) (17 S.E. 955); McElhaney v. Crawford, 96 Ga. 174, 177 (22 S.E. 895); Code, § 3-401; Powell on Actions for Land, §§ 114, 116, 117.

Judgment reversed. All the Justices concur.