Schaeffer v. Central of Georgia Railway Co., 6 Ga. App. 282

Schaeffer v. Central of Georgia Railway Co.

6 Ga. App. 282 | Ga. Ct. App. | 1909

Powell, J.

Schaeffer brought suit for damages against the railway company. The defendant demurred. On October 20, 1908, the judge passed an order sustaining the demurrer, and providing that the case should stand dismissed unless the plaintiff, by 10 o’clock a. m. on October 26, should amend in certain respects set out in the order. It is recited in the bill of exceptions that the plaintiff filed exceptions pendente lite to this judgment; and these exceptions were specified as a part of the record and have been duly sent here by the clerk, but no error has been assigned upon them either in the main bill of exceptions or otherwise. It further appears from the bill of exceptions that on October 24 the plaintiff filed an amendment to his petition, but that on October 26 the judge passed an order disallowing the amendment, on the ground that it was insufficient to meet the requirements of the order previously passed. To this judgment exception is taken and error is assigned thereon. However, the proffered amendment is not set out in the bill of exceptions or otherwise attached thereto or made a part thereof; though what purports to be a copy of the amendment has been sent up as a part of the record, under specification made in the bill of exceptions.

The plaintiff in error has not assigned error upon the final judgment, either in the bill of exceptions or upon his exceptions pendente lite. HIs only assignment of error is upon the subsidiary, *283though perhaps controlling, proposition that the court erred in not allowing the amendment to the petition. We think the recital in the bill of exceptions, that a final judgment was rendered and that the plaintiff excepted thereto pendente lite, while not sufficient to present for consideration the question whether the court erred in granting that judgment, nevertheless would be sufficient to give the court jurisdiction, under the Lyndon case, 129 Ga. 353 (58 S. E. 1047), provided there were a valid assignment of error upon the refusal to allow the amendment. However, we are not permitted to review the action of the court in rejecting the tendered amendment, because that paper is not set out either literally or in substance in the bill of exceptions, or attached as an exhibit thereto or otherwise made a part thereof. The rule is well settled that where a party offers an amendment to his pleading and the judge declines to allow it, the proffered amendment can not be specified •as record. Branan v. Baxter, 122 Ga. 224 (50 S. E. 45); Taylor v. McLaughlin, 120 Ga. 706 (48 S. E. 203); Walker v. Equitable Mtge. Co., 114 Ga. 871 (40 S. E. 1010); Hays v. Clay, 124 Ga. 908 (53 S. E. 399); McGarry v. Seiz, 129 Ga. 296 (58 S. E. 856). The fact that the party went through the formality of filing the amendment before the order of the judge was taken upon it does not change the matter. “A party, as a matter of right, can not file an amendment without a previous order of the judge. When he offers the amendment, it is an application for it to be made a part of the record; and when the court denies the application, it is no part of the record and can not be filed as such.-” Branan v. Baxter, supra. In Atlantic & Birmingham R. Co. v. Southern Pine Co., 116 Ga. 225 (42 S. E. 500), it is held that if the amendment is filed under order of the judge it becomes a part of the record, though the judge subsequently strikes it for its legal insufficiency, and that in such a ease the amendment may be specified as a part of the record. This distinction is referred to in the case of McGarry v. Seiz, supra.

It follows that we are without jurisdiction to determine the questions which the plaintiff in error has attempted to present.

Writ of error dismissed.