Swindell & Co. v. Saddler , 1905 Ga. LEXIS 97 ( 1905 )

Candler, J.

(After stating the foregoing facts.) 1. Under the liberal law now of force in this State in regard to the allowance of amendments, and the liberal construction of that law by this court, we are not prepared to hold that the amendments to the petition which were allowed over the objection of the defendants set up a new and distinct cause of action. “ Relatively to the law of pleading, a cause of action is some particular right of the plaintiff against the defendant, together with some definite violation of that right.” City of Columbus v. Anglin, 120 Ga. 785 (4). In the present case, the particular right declared on by the plaintiff was the right to the unmolested possession and enjoyment of the timber on his land, and the definite violation of that right in the cutting of the timber by the defendants. It is true that the original petition sought relief under a particular act of the General Assembly, on the theory that the plaintiff had a perfect paper title to the land on which the timber was located; while the amendments sought relief on the ground that the defendants were insolvent and that the damages sustained or about to be sustained would be irreparable. This, however, was a matter which went to the form of the assertion of the plaintiff’s right, rather than to the substance of the right itself. No new cause of action was set up by the amendments, and their allowance was not error.

2. We are clear, however, that, upon the face of the pleadings as they appear in the record, the plaintiff is not entitled to the relief sought. It was not denied that the plaintiff signed a contract for the sale of the timber the cutting of which he now seeks to enjoin. On its face this paper stipulates for the sale of all the timber on the plaintiff’s land. If it does.not speak the true agreement between the parties, it must be reformed before equity will interfere to restrain the apparent rights of the defendants thereunder. A case directly in point is Perkins Lumber Co. v. Wilkinson, 117 Ga. 394; and further discussion is unnecessary, other than to say that under the decision in the case cited the grant of an injunction was clearly error.

Judgment reversed.

All the Justices conmor.