Askew v. Singletary

• Decision Date: 22 October 1912
• Docket Number: 4,118.
• Parties: ASKEW v. SINGLETARY et al.
• Court: Georgia Court of Appeals

76 S.E. 98

11 Ga.App. 727

ASKEW v. SINGLETARY et al.

No. 4,118.

Court of Appeals of Georgia

October 22, 1912

Syllabus by the Court.

Where an amendment to a petition is filed under order of the trial judge, it becomes a part of the record, though the judge subsequently strikes it for legal insufficiency, and in such case the amendment may be specified as a part of the record.

The amendment filed by the plaintiff under order of the court was sufficient to meet the ruling of the court as to the grounds of the special demurrer. But even without the amendment the allegations of the petition were sufficient to permit the introduction of evidence, and the judgment dismissing the petition on oral motion was erroneous.

Error from City Court of Blakely; L. M. Rambo, Judge.

Action by B. H. Askew against A. J. Singletary and another, as executors de son tort. Judgment for defendants, and plaintiff brings error. Reversed.

Sheffield & Askew, of Arlington, for plaintiff in error.

Glessner & Park, of Blakely, for defendants in error.

HILL C.J. (after stating the facts as above).

1. The motion to dismiss the writ of error is denied. The amendment to the petition was filed under the order of the judge though he subsequently struck it for legal insufficiency. In such case the amendment may be specified as a part of the record. McCall v. Herring, 116 Ga. 235, 42 S.E. 468; McGarry v. Seiz, 129 Ga. 298, 58 S.E. 856.

Counsel for movant relies upon the case of Schaeffer v. Central of Ga. Ry. Co., 6 Ga.App. 282, 64 S.E. 1107, followed in Ledbetter v. Savannah Brewing Co., 8 Ga.App. 282, 68 S.E. 950. A casual reading of these two opinions suggests an apparent conflict with the ruling in McCall v. Herring supra. But in the two cases in this court it appeared that the trial judge did not order the amendment to be filed, but simply held that an amendment was necessary to meet the demurrer, and granted time for the amendment to be made, and subsequently disallowed the amendment on the ground that it was insufficient to meet the requirements of the order previously passed. In the instant case the judge distinctly granted permission to file the amendment, although he subsequently disallowed it; and Judge Powell, in the Schaeffer Case, supra, states that i9t is held that, if an amendment is filed under order of the judge, it becomes a part of the record, though he subsequently strike it for legal insufficiency, and in such case the amendment may be specified as a part of the record. Judge Powell's reference to Atlantic & B. R. Co. v. Southern Pine Co., 116 Ga. 225, 42 S.E. 500, as holding this, is evidently a miscitation; it doubtless being his intention to refer to McCall v. Herring, supra, which is in the same volume.

2. The judgment sustaining the special grounds of the demurrer is of peculiar phraseology. It sustains the second, third, and fourth grounds of the special demurrer, with the proviso that if an amendment is offered by the plaintiff within ten...