Humphries v. Morris , 1934 Ga. LEXIS 214 ( 1934 )

Gilbert, J.

Marion R. Humphries brought suit in the superior court of Coweta County against J. H. Morris et al. The defendants demurred to the petition. On July 10, 1933, the trial judge passed the following order: “The above demurrer is overruled, provided plaintiff, on or before August 1st, 1933, amends by setting out the date of the alleged tender. Upon his failure to do so the general demurrer is sustained.” On July 26, 1933, counsel for petitioner mailed an amendment to the judge. The judge being absent from his circuit, the receipt of the amendment was acknowledged by a person who signed as secretary to the judge. The bill of exceptions recites: “The amendment allowed by the court on July 31st, 1933, was not actually filed in the clerk’s office of the superior court of Coweta County until August 4, 1933.” Subsequently the defendants moved to dismiss the ease, on the ground that the petition was not amended in compliance with the terms of the order of the judge, which provided that the plaintiff could amend “on or before August 1st, 1933,” and that on failure to do so “the general demurrer is sustained.” After a hearing on the motion the court rendered the following judgment: “The within motion to dismiss the within case coming on to be heard, and it appearing that the amendment referred to in the order of the court of July 10th, 1933, was not filed in the office of the clerk of the superior court of Coweta County until Aug. 4th, 1933, the case is hereby dismissed, with judgment against the plaintiff for costs.” The exception is to that judgment. The sole question for determination is whether or not failure to file, on or before August 1, 1933, the amendment which was allowed within the time, required a dismissal of the petition.

Where a demurrer to a petition is interposed, and a judgment is rendered thereon which allows time for an amendment to the petition, and the effect of the judgment is to dismiss the petition as a whole unless there is compliance with the judgment by amending within the time, the judge is powerless, after the expiration of the time, to amend the judgment and allow additional time. This is true for the reason that the judgment disposes of the ease entirely, and the court has no longer any jurisdiction. If, on the contrary, in such a ease the court overrules the demurrer, and where the judgment does not go further and prescribe that the petition is dismissed on failure to comply with the order, the whole case is not out of court, but, on the contrary, is still pending. In the latter circumstances the court has jurisdiction to take such further action as may be appropriate, such as extending the time for amendment. The judgment in this case, properly construed, sustained the general demurrer and dismissed the entire case unless plaintiff amended his petition in the manner stipulated, on or before August 1, 1933. The failure so to amend by the time stipulated resulted in the automatic dismissal of the entire case, and the court no longer had any jurisdiction thereof. Blyth v. White, 178 Ga. 488 (173 S. E. 421).

An amendment to a petition is no part of the record until it is filed. Therefore mere allowance of an amendment on or before the time allowed in the judgment, without filing, is not a compliance with the order. “A proposed amendment can not properly be so filed as to become a part of the record, until it has been allowed. Merely haying it filed will not suffice. It is not a sufficient compliance with an order allowing a party twenty days to amend his pleadings, to file a proposed amendment without any allowance thereof. Richards v. Shields, 138 Ga. 583 (75 S. E. 602), and citations.” Johnson v. Vassar, 143 Ga. 702 (85 S. E. 833); Clark v. Ganson, 144 Ga. 544 (3), 545 (87 S. E. 670). In Barnett v. East Tenn., Va. & Ga. Ry. Co., 87 Ga. 766 (2) (13 S. E. 904), it was held: “ Where an amendment to a declaration is offered and disallowed by the court, it does not constitute a part of the record; and in order to have this court review the ruling of the court below in rejecting such offered amendment, it should be set out in the bill of exceptions or annexed to the same as an exhibit, properly authenticated.” To the same effect see Sibley v. Mutual Reserve Fund Life Association, 87 Ga. 738 (13 S. E. 838); Taylor v. McLaughlin, 120 Ga. 706 (48 S. E. 203). “A party, as a matter of right, can not file an amendment without previous order of the judge.” Branan v. Baxter, 122 Ga. 224 (50 S. E. 45). Obviously the reason underlying the ruling that an amendment which has been disallowed by the court “does not constitute a part of the record” is that it can not be filed. If there could be portions of the record which had not been duly filed, it would be impossible for the court and counsel to know when they had a complete record before them. Any other view would lead to utter confusion. If one could amend his pleadings by merely having the amendment “ allowed” by the trial judge, without filing, the effect would be to place it in the power of the amending party to prevent an exception to the judgment by withholding it from the record until the time had expired within which the exception might be certified by the court and filed. This would deprive the opposite party of a substantial right. That such procedure would lead to confusion seems to have been assumed by the court in deciding the case of Johnson v. Vassar, supra, where it was said: “A proposed amendment can not properly be so filed as lo become a part of the record until it has been allowed.” Clearly that amounts to a ruling that an amendment can not become a part of the record until it is filed.

In Lovelady v. Hockenhull, 58 Ga. 469, it was held: “A certiorari not marked ‘filed in office/ nor ever in the office of the clerk of the superior court, nor ever in the possession of the clerk at all, is not an office paper so as to be established by copy instanter, on motion, under section 3980 of the Code” (Civil Code of 1910, § 5312). The above ruling was made notwithstanding the fact that the certiorari had been sanctioned by the judge and handed to the plaintiff. The court held that the paper was the “private property” of the petitioner until it was in the possession of the clerk or filed in his office. In Perry v. Friedin, 17 Ga. App. 417 (87 S. E. 683), it was held that the trial court can not establish a lost bill of exceptions which “has not been filed,” nor deposited with the clerk nor with any subordinate in his office. It has several times been held that until a motion for new trial “is filed, it is a mere private paper.” Hilt v. Young, 116 Ga. 708 (43 S. E. 76); United States Fidelity & Guaranty Co. v. First National Bank of Cornelia, 149 Ga. 132 (99 S. E. 529); Peavy v. Peavy, 167 Ga. 221 (145 S. E. 55). In Hilt v. Young, supra, it was said: “It is true that in Wynne v. Stevens, 101 Ga. 808 (28 S. E. 1000), Mr. Presiding Justice Lumpkin says that presenting a petition for the foreclosure of a mortgage ‘to the judge was equivalent to a filing of it in court, and the fact that he took official action upon it is itself evidence of such filing. The clerk's entry was also evidence, but it was not the exclusive method of proving the fact of filing.' It appeared in that case that the petition was actually filed and an entry of filing made by the clerk thereon three days after the rule nisi was issued; and it was ruled that it was not necessary that the petition should have been filed before the rule was issued, both having been done at the same term of court. It thus appears that the language above quoted was obiter, and upon mature consideration we are satisfied that it does not state the correct rule. If the fact that the judge grants a rule nisi on a petition or a motion for a new trial is to be treated as conclusive evidence that the pleading has been filed, then it follows necessarily that taking such official action by the judge would dispense altogether with the necessity of an actual filing; and we do not think this can be done. The law says the paper must be filed, and it is not within the power of the judge to dispense with the necessity of compliance with this law. It would be a very loose practice to allow the counsel for the losing party in a case to present to the judge a motion for a new trial, obtain a rule nisi thereon, procure an acknowledgment of service, and then constitute himself or his client the custodian of the paper until the motion was finally disposed of. Such a practice as this ought not to be allowed unless there is express law authorizing it.”

Admittedly there is a strong sympathetic urge to make some exception to what is considered the sound and necessary rule, in a case where there are extenuating circumstances. Counsel, who relied upon the United States mail, was doubtless merely following a custom among many of the profession. On the other hand, it can not be overlooked that had counsel personally followed the matter closely enough, the amendment which was allowed on July 31 could have been filed within the time limit, August 1. However that may be, undoubtedly it is better to establish a fixed rule of practice rather than to allow exceptions which must be passed upon in the individual case and which would destroy the validity of the rule altogether. It was held in Zipperer v. Helmly, 148 Ga. 480 (97 S. E. 74): “Under proper construction of the order allowing the plaintiff thirty days in which to present to the court an amendment of his petition, it was within the power of the court, to allow an amendment which had been filed, within the thirty days so allowed, in the office of the clerk of the court where the case was pending, but had not been presented to the judge within the thirty days.” In that case the amendment was filed within the time required by the judge’s order, as in Richards v. Shields, Johnson v. Vassar, and Clark v. Ganson, supra. In this case the judge construed his order as requiring the amendment to be filed “before August 1st, 1933.” If the order is susceptible of a construction that it must either be “filed” or “approved” by August 1st, “the Supreme Court will adopt that construction of the order which is placed upon it by the judge who granted it.” Barnes v. Macon & Northern R. Co., 105 Ga. 495 (30 S. E. 883); Brown v. Richards, 114 Ga. 318 (40 S. E. 224); Gould v. Johnston, 123 Ga. 765, 769 (51 S. E. 608); Pinnebad v. Pinnebad, 129 Ga. 267 (58 S. E. 879); Baxter v. Camp, 129 Ga. 460 (2) (59 S. E. 283). Other eases mentioned in connection with the rule as to filing briefs of evidence in motions for new trial are, Hightower v. George, 102 Ga. 549 (26 S. E. 729); Malsby v. Young, 104 Ga. 205 (30 S. E. 854); Martin v. Monroe, 107 Ga. 330 (33 S. E. 62); Mitchell v. Masury, 132 Ga. 360 (3) (64 S. E. 275); Central of Georgia Ry. Co. v. Bell, 133 Ga. 94 (5) (65 S. E. 155); Cobb v. Hall, 136 Ga. 254 (71 S. E. 145); Verner v. Gann, 144 Ga. 843 (88 S. E. 204). It will be seen from a careful examination that no one case, cited above, in terms rules on the exact question here presented. The present case must be decided by applying principles found from analysis of cases and statutes. Thus we find that the only sound rule is that no document is a part of the record of a case until it is filed; and according to the construction placed upon the order by the judge who granted it, the proffered amendment was not a compliance therewith.

Judgment affirmed.

All the Justices concur, except Russell, C. J., and Bell, J., who dissent.