Heyward v. Ramsey

35 Ga. App. 472 | Ga. Ct. App. | 1926

Bloodworth, J.

(After stating the foregoing facts.) The court did not err in overruling the demurrers.

The amendment did not set forth a new and distinct cause of action from that alleged in the petition. The amendment does not contain any other or different wrong from that pleaded in the original petition, but-the additional matter is simply descriptive of the same wrong. City of Columbus v. Anglin, 120 Ga. 785 (5) (48 S. E. 318); Moore v. Hendrix, 144 Ga. 646 (3) (87 S. E. 915).

There was enough in the original petition to amend by. “There was a plaintiff, a defendant, jurisdiction of the court, and facts enough to indicate and identify some particular cause of action as the one intended to be declared upon so as to enable the court to determine whether the facts to be introduced by the amendment are a part and parcel of the same case.” Ellison v. Georgia Railroad Co., 87 Ga. 692 (6) (13 S. E. 809). The amendment did nothing more than to perfect an imperfect cause of action.

Though the petition alleges that the amount due the plaintiff was for services rendered “as per contract,” it was not necessary to attach a copy of the contract, for it “is not declared on, does not constitute the cause of action, and there is no prayer for relief based thereon. Civil Code, § 5541. The contract (if there be one in writing) is simply evidence of the indebtedness and could be used as such.” Ittner v. Farmers State Bank, 15 Ga. App. 235 (89 S. E. 909) ; Cooney v. Foote, 15 Ga. App. 457 (3) (83 S. E. 896); Chatham Abattoir &c. Co. v. Painter Engineering Co., 28 Ga. App. 383 (111 S. E. 82); Southern Ry. Co. v. Grant, 136 Ga. 303 (1), 304 (71 S. E. 422, Ann. Cas. 1912C, 472); Roberts v. Leak, 108 Ga. 806 (33 S. E. 995); Schmidt v. Wambacker, 62 Ga. 321.

’ There was some evidence to support the finding of the jury, and the verdict having been approved by the trial court the judgment is Affirmed.

Broyles, C. J., and Luke, J., concur.