Mauldin v. Mauldin

• Decision Date: 09 November 1920
• Docket Number: 11607.
• Parties: MAULDIN v. MAULDIN.
• Court: Georgia Court of Appeals

105 S.E. 252

25 Ga.App. 743

MAULDIN v. MAULDIN.

No. 11607.

Court of Appeals of Georgia, First Division

November 9, 1920

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Petition by R. F. Mauldin to vacate order committing him as an incompetent, and an order appointing a guardian, etc., which orders were procured by Mrs. Lula G. Mauldin. From the decree rendered by the superior court, on appeal from the court of ordinary, J. T. Davis, guardian brings error. Affirmed.

Petition in court of ordinary by R. F. Mauldin to vacate orders entered in October, November, and December, 1917, committing him to a sanitarium as an incompetent person and appointing a guardian of his property, and for relief against sale of property by the guardian on ground that orders were entered in vacation, and that the guardian sold property in fraud of rights of petitioner. On appeal to the superior court petitioner filed amendment to petition to show that on February 2, 1919, the sanitarium authorities dismissed petitioner from the sanitarium, and that since that time he has been operating a store, and that under the statute laws he cannot be returned to the sanitarium without a jury trial and that his original incarceration was unlawful in that he was committed to a sanitarium as a pauper by defendant whereas he had sufficient property to pay for any treatment that might have been accorded him.--Statement by editor.

Anderson Rountree & Crenshaw, of Atlanta, for plaintiff in error.

Hewlett & Dennis, of Atlanta, for defendant in error.

BROYLES C.J.

1. The amendment to the petition did not set out a new cause of action, and the court did not err in allowing it over the objections urged.

(a) There was no merit in the objection that the amendment set up facts which developed after the filing of the original petition in the ordinary's court. It is not error upon the trial on appeal, in the superior court, to allow an amendment to the pleadings which could have been properly allowed in the ordinary's court if the case had been there pending instead of in the superior court. The true test is: Was the subject-matter of the amendment within the jurisdiction of the ordinary's court? See, in this connection, Watson v. Goolsby, 86 Ga. 805, 13 S.E. 106; Hufbauer v. Jackson,

91 Ga. 301, 18 S.E. 159; Stansell v. Massey, 92 Ga. 436, 17 S.E. 821; Berger v. Saul, 109 Ga. 240, 34 S.E. 1036; Patterson v. Sams, 2 Ga.App. 756,...