Shackelford v. Covington

130 Ga. 858 | Ga. | 1908

Fish, C. J.

(After stating the foregoing facts.)

1. The first point for adjudication is, whether the court erred in refusing to permit the plaintiffs to amend their supplemental petition, by striking therefrom all matter making it supplementary and substituting in lieu thereof matter which, if the amendment had been allowed, would have dissevered the original petition from the supplemental petition and converted the latter into an independent petition against the new defendants alone, thereby making an entirely new case. A supplemental petition, when properly before the court, is a mere addition to, or continuance of, the original petition, the whole constituting an amended petition. 16 Cyc. 359. No supplemental petition need be filed under our practice, as all matters formerly proper for such a petition shall be allowed by way of amendment. Civil Code, §4969. A supplemental petition may, therefore, properly be treated as an amendment to the original petition. Our rule in regard to amendments is quite liberal, as all parties may, at any stage of the cause, as matter of right, amend their pleadings, both in matter of form and substance, provided there is enough to amend by (lb. §5097), with the further restriction against the addition of a new and distinct cause of action, or new and distinct parties, unless expressly provided for by law (lb. §5099); though the making of new parties in equity is always allowable in a proper cause.

Notwithstanding the liberality of the law as to the right to amend, we feel confident that the court correctly ruled that the supplemental petition in the present case was not amendable in the manner proposed. To decide otherwise would be tantamount to holding that where a petition is amended by setting up new matter against one not a party to the original case, the amendment itself may be amended, after such person, has become a party defendant, by striking therefrom all allegations going to make it an amendment and substituting, in lieu thereof other allegations, the effect of which would be to sever all ties between the original petition and the amendment- thereto and to convert the amendment into a new suit against a new party alone. Such a proceeding, if allowed, would, in our opinion, be extending the right of amendment beyond the scope of even our broad and liberal rule on the subject.

2. The supplemental petition, when considered in connection with and as a part of the original petition, was evidently open to the attack made on it by the second ground of the motion to dismiss the same. Plaintiffs alleged substantially, in their original petition as amended, that three of the defendants named therein, one of whom was the trustee, and all having, as had plaintiffs, an interest in the trust estate, wrongfully converted to their own use certain sums of money belonging to such estate, among which was $1,500 which had been loaned by the former trustee to one of the defendants, secured by a mortgage, which had been subsequently cancelled by the trustee defendant, and the mortgaged premises conveyed by the mortgagor to him as an individual, and afterwards conveyed by him to Covington, who plaintiffs could not show was not an innocent purchaser; that such three defendants were insolvent, and that plaintiffs, who claimed to be the owners of all that remained of the trust property, by reason of such wrongful acts of the defendants in appropriating more of the trust estate than they were entitled to, had lost said sum of $1,500. A verdict having been rendered finding that these three defendants had committed the wrongful acts charged against them, it was accordingly decreed that they had no further right to or interest in what remained of the trust estate, and that plaintiffs were the sole owners in fee thereof. A receiver for the trust estate was appointed, after verdict, who, in the decree, was directed to take charge of specified property of the estate, but the note for $1,500 and" the mortgage given to secure its payment were not mentioned in the decree as being part of the estate, nor was the cancellation of the cancellation of the mortgage, or the cancellation of the deed from the mortgagor to one of the defendants to the mortgaged premises, decreed, although there was a prayer that both be cancelled. The decree recited that it was final, although it gave plaintiffs leave to move for any appropriate relief, “looking only to any assets of said corpus hereafter discoverable, if any, without personal liability to present defendants.” As the plaintiffs had been compensated, in part at least, for their loss of the $1,500 which this mortgage was given to secure, by having it decreed that three of the defendants had no further interest in the trust estate, by reason of having wrongfully appropriated to their own use that sum, as well as other funds, belonging to the trust estate, and that plaintiffs were the sole owners in fee of the remaining corpus of such estate, the plaintiffs were estopped from proceeding by this supplemental petition to foreclose the mortgage against the heirs at law of Covington, who had purchased the mortgaged land, especially as the mortgage was not referred to in the decree as being an asset of the estate, and was not a subsequently discovered asset.

Judgment affirmed.

All the Justices concur.