No. 34 | Ga. | Jan 15, 1857
By the Court.
delivering the opinion.
In this case, the defendant in the bill put in his answer,
Afterwards the defendant amended his answer and made another motion founded on the amended answer, for the dissolution of the injunction.
This motion, the Court held barred by the judgment in the first motion.
The simple question is, whether in holding this the Court held right?
There can be no doubt, that a Court of Equity would refuse to entertain a second motion to dissolve an injunction, if both motions were placed on precisely the same foundation. But it by no means follows from this, that it would or ought to refuse to entertain _ a second motion, if the second was placed on a different foundation from that of the first.
In such a case, the doctrine of res adjudicada could not apply.
It is true, that in such a case, it might be, that the doctrine of discouragement to laches would apply. If mere negligence was the reason why the first answer failed to present the case presented by the second, a Court of Equity would be justified, if not required, to refuse to entertain the second motion.
But in this case there are facts which we think repel the idea, that negligence was the reason why [the first answer lid not present what was presented by the second.
The facts are, that the Court allowed the defendant to amend his answer without terms; without imposing a condition that he was not to make a second motion founded on the answer as amended for a dissolution of the injunction And the statute of amendments of 1854, although it says, that though the Court shall allow any amendment at any stage of the cause, yet also says that it may compel the amending party to pay the costs, and may enforce “other reasonable and equitable tefms on him at discretion.”
The statute evidently intends that a party may have an unlimited right of amendment, but not gratis. It intends that he shall pay for the right, and it leaves the price absolutely to the discretion of the Court restrained by nothing but a regard to what is reasonable and equitable; When however, the amending party has paid the price imposed on him, that ought to restore him to favor with the Court, and the matter of his amendment ought to be as available to him as if it had been presented in his original answer.
In this case, as I said, it does not appear that any terms were imposed on the defendant, as the price of the right to amend his answer. He, therefore, is not to be viewed with disfavor because he has amended his answer. His answer-must be considered as worth as much to him, as if there had been no defective answer, and no motion thereupon.
We think therefore, that the Court below ought to have entertained the second motion, notwithstanding the judgment on the first.
This Court, however, is not to be understood as intimating an opinion, that the act of 1854 ought to be so administered as to encourage or to countenance negligence; this Court thinks that the act ought not to be so administered as to produce that effect. And it thinks that there is no necessity that the act should be so administered as to do so. Let the Courts refuse to allow amendments, except on such terms as shall prevent delay of the trial. Let them exact of the applicants for leave to amend, undertakings to go to trial at an early day; waivers of all formal objections of every kind; waivers of the proof of documents, and of the pro
Judgment reversed.