Askew v. Singletary

• Citation: 11 Ga.App. 727,76 S.E. 98
• Decision Date: 22 October 1912
• Docket Number: (No. 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.

Oct. 22, 1912.

(Syllabus by the Court.)

1. Appeal and Error (§ 518^*)—Scope and Contents—Amendment to Pleading.

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.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2342-2355; Dec. Dig. § 518.*]

2. Executors and Administrators (§ 544*)— Actions—Pleadings—Amendment.

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.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 2594-2603; Dec. Dig. § 544.*]

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.

Askew brought suit against A. J. Singletary and R. C. Singletary, as executors de son tort of the estate of L. W. Singletary, to recover $500. The original petition alleged that on or about August 8, 1908, L W. Singletary took and converted to his own use, of the property of the plaintiff 1.500 first-class pine cross-ties, to which he had no right or title, which lay upon and along the right of way of the "A. & N. Railway Co., " at or near Philema, in Lee county, Ga., and which were, at and since that time, of the value of 33 1/3 cents each, and of the aggregate value of $500; that the plaintiff had repeatedly demanded payment for them from the said L. W. Singletary during his life and since his death from the defendants; that neither L. W. Singletary nor any person for him, nor the defendants, ever paid plaintiff the value of the cross-ties, or any part thereof, or restored to him the cross-ties, or any part thereof.

The defendants demurred to the petition, on general and special grounds—the special grounds being that it did not disclose what personal property of the value of $500 the defendants possessed and converted to their own use, or the nature of said property, or how or when or in what manner it was converted to their own use; that the petition did not specifically allege facts showing that the defendants were executors de son tort upon the estate of L W. Singletary; and that it failed to disclose any reason why the petitioner might not proceed against the estate of L. W. Singletary, or why it was necessary to sue the executors de son tort. The trial judge overruled the general demurrer and sustained the special demurrer on three of the grounds, with the proviso, however, that "if amendment is offered within the ten days hereby allowed, meeting the second ground of the demurrer, then the demurrer shall be overruled in toto."

Within the ten days the plaintiff offered an amendment in the following language: "Now comes the plaintiff in the above-stated case and by leave of the court files this his amendment to the original petition in said case, and shows that, explanatory of and amplifying paragraph 4 of the original petition, defendants possessed and converted to their own use, of the property of L W. Singletary, deceased, the following: (1) On or about January 20, 1910, 10, 000 cross-ties, more or less; the same being in the county of Early, along the right of way of the Central of Georgia Railroad, from Hilton, Ga., to Arlington, Ga., such ties being of the value of 35 cents each. (2) On or about the same date 3, 000 cross-ties, more or less, distributed in lots of varying numbers, to plaintiff unknown, along the line of the Georgia. Florida & Alabama Railroad, between Arlington, Ga., and Kestler, Ga.; such ties being of the value of 35 cents each. (3) The sum of $249, which at the time of the death of the said L. W. Singletary was on deposit to the credit of the said L. W. Singletary at the First National Bank of Blakely, Ga. (4) The sum of $200, which at the time of the death of the said L. W. Singletary was on deposit to the credit of said L. W. Singletary at the Bank of Blakely, of Blakely, Ga."

On oral motion of the defendants, upon tbe ground that the amendment filed under the order of the court was not sufficient to meet the demurrer, the court dismissed the petition, and this judgment is here for review.

On the call of the case in this court a motion was made to dismiss the writ of error, based upon the ground that "the rejectedamendment to the petition is not set forth in the bill of exceptions, but is sought to be brought to this court as a part of the record; wherefore it cannot properly be considered, and without it no question is presented to this court on which it can undertake to pass."

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

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