128 Ga. 37 | Ga. | 1907
(After stating the facts.)
If a motion had been made during the term, to open the judgment or reinstate the case as to this defendant and to allow an amendment, the matter would have been in the discretion of the court. Van Dyke v. Van Dyke, 120 Ga. 984; McCandless v. Conley, 115 Ga. 48; Perkins v. Castleberry, 119 Ga. 702; Bowen v. Wyeth, Id. 687. But no such motion was made, nor was any such order taken then or at any time. The amendment offered had for its sole purpose the adding of allegations to meet .the demurrer and to make out a case against the lot owner for foreclosing a lien on her property. The presiding judge did express the opinion that if the amendment were allowable, the order would not prevent it from being made. But we can not concur with our excellent and conscientious brother in that view. The thing sought to be done was not to open the door which had been closed, so as to allow further pleading as to this defendant', but to inject an amendment in spite of the closure effected by the signing of the judgment on the demurrer. Had a motion to reopen been made during the term, it might have been carried forward and passed on later. The case of Ellison v. Georgia R. Co., 87 Ga. 691, is cited. But there the amendment was offered before the judgment was signed. The mere filing of an amendment during the first term, without any motion to reopen the case or change the former order, did not alter the status. Of course the case as to the other defendants remains, and as to them is amendable under the usual practice. It was error to allow the amendment at a later term of the court, though filed during the same term when the demurrer had been sustained. A discussion of the various English statutes of amendments and jeofails," and of the differences between the ancient English pleading and our own, would be of little service and would require much writing.
Judgment reversed.