118 Ga. 156 | Ga. | 1903
Lead Opinion
Burton brought an action against Venable for the re-, covery of real property. The only description of the property appearing in the petition was as follows: “ Lot of land four hundred and twenty-five (425) in the second district and 1st section of said
While, under the operation of the recent procedure acts, great liberality is permitted in this State in the matter of amendments, the rule is still of force that “no amendment adding a new and distinct cause of action” shall be allowed. Civil Code, § 5099. This rule was also of force at common law. 1 Ene. P. & P. 547. Until the General Assembly sees fit to alter this rule of practice, the ■courts must adhere strictly to it, notwithstanding the legislative policy to allow great latitude as to amendments in other respects is apparent. “ The office of an amendment is to render something before set out complete, when it is deficient — to explain where it is legally obscure, to make perfect from a legal standpoint that which as set out is imperfect; but it must always relate to the matter and cause of action as set out; it may amplify, enlarge, or extend the cause of action, but it can not change it into another different and distinct cause.” Summerour v. Felker, 102 Ga. 254, 259. The foregoing quotation accurately and concisely states the rule which has been consistently adhered to by this court. Differences may and do arise as to its application in given cases, but no doubt can be entertained as to its existence. Many tests havé been applied to determine whether a new cause of action is ■set forth. It has been said to be a fair test to inquire “ if a recovery had upon the original complaint would be a bar to any recovery under the amended complaint, or if the same evidence would support both, or if the same measure of damages is applicable, or if both are subject to the same plea,” and in some cases it has been said that the intention of the plaintiff when he instituted the original suit has an important bearing upon the question whether the amendment states a different cause of action. 1 Ene. P. & P. 556. The plaintiff’s cause of action was the right to recover the property from the defendant and the latter’s wrongful withholding of pos
In the case of Summerour v. Felker, 102 Ga. 254, an affidavit made as the basis for the issuance of a distress warrant alleged that Summerour was indebted to the affiant in a named sum, “ for rent of one farm in said Gwinnett county, near Windsor.” After the levy had been made and a counter-affidavit interposed the plaintiff in the warrant proposed to amend the affidavit by stating that the defendant was indebted to him “for rent of one farm in Walton county, near Windsor, known as the Sack Carter place.” It was held that while such an affidavit was amendable under the same rules as an ordinary petition, the amendment in question was not allowable, because it sought to add a new and distinct cause of action from that set forth in the original affidavit. In Allen v. Stephens, 107 Ga. 733, suit was brought to recover a certain amount of money claimed by the plaintiffs to be their proportionate part of the proceeds of timber sold by the defendant, which had been grown on land in which plaintiffs and defendant owned undivided interests. The petition alleged that there were several lots of land so owned by the parties in a given district and county, and' that the timber sold by the defendant was cut from lot number 57. It was held to be erroneous to reject an amendment changing the number of the lot from 57 to 54; “the petition having otherwise so identified the property sued for as to make it clear that the amendment offered did not add a new cause of action, but was simply for the purpose of correcting a mistake made in the original petition in designating by the wrong number the particular lot from which the timber was cut.” In the opinion Mr. Justice Lewis said: “The subject-matter of the suit was really a certain proportionate part of the proceeds of the sale of timber in which the plaintiffs claimed an interest. Had this been an action of trespass for damages on account of injury done the freehold by trespassing upon a certain lot of land, the question would have been entirely different from what is presented by this record. It would have been necessary then to have definitely described the lot or parcel of land that had been thus damaged, and an amendment showing that an entirely different lot had been trespassed upon from that mentioned in the original petition would have apparently added a new cause of action. But we do not mean to say that even in such a case the plaintiffs would not have
In the present case the petition and the deeds described the land simply as lot number 425 in a given county and district. Plainly,, therefore, the plaintiff’s cause of action was his right to recover-that particular lot of land and the defendant’s wrongful withholding of possession of such lot. There is absolutely nothing in the-petition to identify this lot with that described in the amendment. Indeed it is not claimed even in the amendment that they are the-same, but on the contrary it is admitted that lots 425 and 483 are separate and distinct tracts. The theory on which the amendment-was offered is that plaintiff thought when the petition was filed that-lot 425 was the tract which he has since ascertained to be lot 483. The amendment does allege that the land sought to be recovered is the same in both instances, but it takes the allegations of
If the plaintiff had brought an original petition setting forth the facts alleged in the amendment, he would doubtless have been en
Dissenting Opinion
(with whom Simmons, C. J., concurs), dissenting. It may be that the plaintiff, was not authorized in this suit to take advantage of a fraud not practiced upon him, but upon one under whom he claims. It may be, in view of the peculiar relation between the parties, that to seek to reform the deed was a new cause •of action. But we are forced to dissent from what the majority say on the general right to amend. . We think the amendment was .allowable on general principles. It alleged that the loan was made on the security of a certain piece of land which the defendant fraudulently represented to bear the lot number 425. In substituting the correct number the plaintiff was not suing for a different tract. 'The amendment sought to recover the same property for which the suit was originally brought. Plaintiff sued for “ White Acre,” calling it number 425, because the defendant had given it that number. When plaintiff discovered what the real number was and ¡substituted that for the designation fraudulently given by the defendant, he was not changing his cause of action, nor suing for a •different parcel of land. To disallow the amendment enables the ■defendant to do two wrongs instead of one. He is allowed to take advantage of his original wrong, to entrap the plaintiff into suing for number 425, and then laugh him out of court when he changes the name and lot number of the property from the false description given by the defendant to the true description of the map.