Taylor v. Keown

• Decision Date: 12 April 1927
• Docket Number: (Nos. 17862, 17891.)
• Parties: TAYLOR. v. KEOWN. KEOWN. v. TAYLOR.
• Court: Georgia Court of Appeals

36 Ga.App. 631

137 S.E. 907

TAYLOR.

v.KEOWN.

KEOWN.

v.TAYLOR.

(Nos. 17862, 17891.)

Court of Appeals of Georgia,

Division No. 1.

April 12, 1927.

(Syllabus by the Court.)

Error from Superior Court, Floyd County; James Maddox, Judge.

Suit by Henry Taylor against Homer Keown. Judgment for plaintiff. Defendant's motion to set aside the verdict and judgment was sustained, and plaintiff brings error and defendant filed cross-bill. Judgment on main bill of exceptions reversed; on cross-bill affirmed.

Henry Taylor brought suit to the July term, 1926, of the superior court of Floyd county, against Homer Keown, for damages in the sum of $2,000 for personal injuries sustained as the result of Keown driving his automobile into the petitioner's truck; the suit being filed May 7, 1926, and the defendant being served in person on said date. On the call of the appearance docket an entry of default was made. When the case was called at the trial term, on October 16, 1926, the defendant was still in default and was not present. A jury was selected, and during the progress of the trial the plaintiff offered an amendment to hiss petition, changing the amount sued for from $2,000 to $5,000, and the amendment was allowed. The jury returned a verdict in favor of the plaintiff for $2,500, which was made the judgment of the court on October 16, 1926. The defendant, on November 12, 1926, made a motion to set aside the said verdict and judgment, on several grounds, which are substantially as follows: Because the plaintiff offered an amendment at the trial term, increasing the amount sued for from $2,000 to $5,000, which amendment opened the default; the amendment was allowed without notice to the defendant; this amendment subjected the petition and the amendment to demurrer and answer, which was not allowed; the court should have continued the case and given defendant an opportunity to answer; the case was called out of its order and without notice to the defendant, and contrary to the rules of practice in Floyd superior court; the judge had announced that no furtherbusiness would be taken up that week except the case which was then being tried; the defendant had not waived his right to be present at the trial; the amendment was material; the defendant has a good and meritorious defense to said suit, which was not filed in the first instance because of a misunderstanding on his part. To this petition the plaintiff filed his answer, and upon the hearing of the issues both plaintiff and defendant introduced evidence, and after argument the judge passed the following order on December 11, 1926:

"The within motion to set aside verdict and judgment coming on for a hearing, after evidence being submitted, and argument of counsel heard, the court is of the opinion that the amendment to the petition of Henry Taylor, which changed the amount sued for from $2,000 to $5,000, was such an amendment as is contemplated by section 5652 of the Civil Code, and had the effect of opening the default that had been entered in said cause, and that movant should then have been allowed a reasonable time for answering such amendment, and that in view of the fact that the amendment was offered and allowed just as the jury was retiring to the jury room to make its verdict, that movant had no notice of such amendment and had not a reasonable time in which to answer. For the reason assigned and for this reason alone, the court is of the opinion that the verdict and judgment should be set aside; wherefore it is ordered and adjudged that the verdict and judgment complained of be and the same is declared null, void, and of no effect, and that the same is vacated."

The plaintiff, Henry Taylor, now plaintiff in error in the main bill of exceptions, excepted to and assigns error on this order, on the ground, in substance, that the amendment increasing the amount sued for from $2,000 and $5,000 "was not one which materially changed the cause of action or defense, " and that the setting aside of said verdict and judgment "was further contrary to law and the evidence because plaintiff, the said Henry Taylor, voluntarily and in open court, and in his answer to the motion of Homer Keown to set aside said verdict and judgment, voluntarily wrote off from said verdict and judgment the sum of $500; and even if there was error in the trial court in the allowing of said amendment by plaintiff, changing the amount of damages claimed from $2,000 to $5,000 without allowing the defendant a reasonable time for answering such amendment, same was harmless and not hurtful to the defendant, because, under the...