Mcgarrt v. Seiz
| Decision Date | 15 August 1907 |
| Citation | 58 S.E. 856,129 Ga. 296 |
| Parties | McGARRT et al. v. SEIZ et al. |
| Court | Georgia Supreme Court |
Where an amendment to a petition is offered and disallowed by the court, it does not constitute a part of the record; and, in order for this court to review the ruling of the court below in rejecting such offered amendment, it should be set out in the bill of exceptions or annexed thereto as an exhibit properly authenticated.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2347.]
The original petition set forth no cause of action, and was properly dismissed on demurrer. (Syllabus by the Court.)
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Action by Mary McGarry and S. J. Mc-Garry against E. C. Seiz and others. Judgment for defendants, and plaintiffs bring error. Affirmed.
Mrs. Mary McGarry and S. J. McGarry filed a petition against E. C. Seiz and the Ætna Indemnity Company, alleging that Mrs. McGarry was the owner of a described lot of land and entered into a contract with Seiz to erect a dwelling thereon for the sum of $7,350; that pursuant to the contract Seiz gave bond, with the Ætna Indemnity Company as surety, in which it was provided that the contract with Seiz should be carried out and completed. The penalty in the bond was $8,000. A copy of the same is attached to the petition as an exhibit. It is alleged that the plaintiffs have fully complied with all the requirements of the contract and the bond. On December 20, 1905, Randall Bros., materialmen, filed a lien on the property against the plaintiffs and Seiz for lumber and material furnished; the amount of the claim being $1,497.72. The claim of lien was duly recorded. On April 5, 1906, Randall Bros, brought suit to foreclose their lien against Seiz and Mrs. McGarry, which is now pending. There being doubt as to the validity of the claim, the plaintiffs have interposed a defense, and required Randall Bros, to make out their case. The Ætna Indemnity Company has been notified of the claim of lien of Randall Bros., and also informed that it would be held responsible for any expenses and attorney's fees that would be incurred by reason of their neglect to pay the Hen. Notwithstanding, the indemnity company has failed and refused to pay. The plaintiffs have, in compliance with the terms of the bond, retained the last payment due the contractor, which amounts to $677, which they are ready to pay over to whoever is entitled thereto. They have requested the indemnity company to give authority to pay the same over, and this has been refused. In the event the lien is valid, the plaintiffs will owe Randall Bros. $820.72, with interest and costs. Theindemnity company has been obstinate and litigious, and plaintiffs ask tbat they be allowed to recover attorney's fees for the prosecution of this suit. The prayer is for judgment against Seiz and the indemnity company for the amount of the Hen claimed by Randall Bros., together with all costs and expenses, including attorney's fees. The bond exhibited recites that Seiz has entered into a contract with Mrs. McGarry for the erection of a dwelling, and the condition of the bond is that Seiz shall faithfully perform his contract according to its terms, covenants, and conditions, except as provided in the bond. It is provided that the indemnity company shall be informed in writing of any act on the part of Seiz, his agents or employes, which may involve a loss for which the company would be responsible, immediately after the act shall come to the knowledge of Sirs. McGarry or her duly authorized representative, and that a registered letter mailed to the president of the company shall be the notice required. It is also provided that the company shall not be liable on the bond to any one except Mrs. McGarry; but it is also agreed that she, in estimating her damages, "may include the claims of mechanics and materialmen arising out of the performance of the contract, " and paid by her, only when the same are, under the laws of the state, valid liens against the property. It is also provided that, if any suit at law or in equity is brought against the company to recover on the bond, "the same must be instituted within six months after the completion of the work specified in the contract." Each of the defendants filed demurrers, both general and special. The plaintiffs offered an amendment to the petition, which the court refused to allow. This amendment appears in the transcript of the record, but it is not set forth in the bill of exceptions, or attached thereto as an exhibit. The demurrers were sustained, and the...
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Watters v. Fisher
...in Lesher v. U.S. Fidelity Co., 239 Ill. 502, 88 N.E. 208; Hart v. Citizens Ins. Co., 86 Wis. 77, 56 N.W. 332, and McGarry v. Seiz, 129 Ga. 296, 58 S.E. 856, accords with our decisions, and the right to sue after date fixed is denied, in the absence of acts of waiver or estoppel: Holtby v. ......
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Watters v. Fisher
...Ill. 502, 88 N. E. 208, Hart v. Citizens' Ins. Co., 86 Wis. 77, 56 N. W. 332, 21 L. R. A. 743, 39 Am. St. Rep. 877, and McGarry v. Seiz, 129 Ga. 296, 58 S. E. 856, accords with our decisions, and the right to sue after the date fixed is denied, in the absence of acts of waiver or estoppel. ......
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Schaeffer v. Central of Georgia Ry. Co.
...Ga. 706, 48 S.E. 203; Walker v. Equitable Mtg. Co., 114 Ga. 871, 40 S.E. 1010 (7); Hays v. Clay, 124 Ga. 908, 53 S.E. 399; McGarry v. Seiz, 129 Ga. 296, 58 S.E. 856. The fact that the party went through the formality of filing the amendment before the order of the judge was taken upon it do......
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