Snelling v. Darrell , 17 Ga. 141 ( 1855 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Has a party the right to amend a motion for a new trial at the hearing, so as to include other grounds besides those originally taken ?

Newly discovered testimony was the foundation of the application in the present case; and it consisted of two items — 1st. A return made by Snelling to the Court of Ordinary, in March, 1845, which he swears he searched for diligently, and was unable to find at the trial, and which he insists will show an indebtedness of the estate of Canaday, to him, of $>ll02 Aoe, and for which he has been allowed no credit. 2diy. The evidence of one George Rish, by whom the defendant proposes to prove, that the complainants in the bill were notified by the testator, ■that he had-made his will arid had directed the forfeiture of his daughter’s legacy, provided she brought suit upon a claim, which she set up to a portion of his negroes and the hire thereof.

Had the defendant the right to amend his rule nisi, so as to-include this additional ground ? If so, he must derive it from the Act of February, 1854, “ to change and simplify Practice and Pleadings in this State.” (Duncan's Dig. 20.) For in the Executors of Riggins vs. Brown, (12 Ga. R. 271,) this Court held that a rule nisi for a new trial, could not be amended by the addition of new grounds, after the application was filed. By. the Act of the last Legislature, parties, plaintiffs or defendants, whether in Law or in Equity, are entitled, as of right, to amend their pleadings, in all respects, in any stage of the case, subject, however, to be taxed by the Court with costs, provided the party applying has been guilty of negligence, and subject to such other reasonable and equitable terms as the Court may see fit to impose, not affecting the real merits of the case.

Is, then, a motion for a new trial a part of pleadings in the cause ? Pleadings have a restricted as well as a general meaning. The one is denominated regular, and the other irregular or collateral pleading. The former begins with the declaration and terminates with the issue of fact or of law, or both. (See 3 Vol. Black. Com. Title Pleading.) The latter includes bills of exceptions, writs of error, motions for new trials and every thing which transpires during the progress of the cause, from its inception to its consummation. (Viner’s Abridg. Pleas & Plead. C.)

The question then recurs — in which sense did the General Assembly intend to use the term in the Statute ? We cannot hesitate to conclude, taking the whole tenor, and spirit of our laws into the account, that the term pleading was designed to be used in its broad sense, and that consequently it includes a motion for a new trial; and to deduce as a corollary, of course, that the same may be amended so as to include a ground not taken when the application was filed.

Must we, of necessity, remand the cause? We are not rcquire<3, imperatively, to do so, on account of this error, as we are under the New Trial Act. Still, if, from a mistake of the-law, the party has lost an important right, he is entitled to redress. Now the view we take of the matter is this : The testimony of George Rish is inadmissible, because incompetent. What the testator said or did, after writing his will, can hardly, we suppose, be looked to as one of those surrounding circumstances referred to in the books, in the light of which the will is to be interpreted, and which may be proven by parol. But the return for 1844, made the ensuing March, ought to have been before the Jury, to enable them to take a correct account between these parties. It exhibits, according to the record, a balance of f 1102 in favor of Snelling, the administrator, upon the receipts and expenditures of the current year. Unless, then, the complainants will scale their decree to the amount of their portion of this sum, with interest thereon, from March, 1845, to the date of the recovery, -a new trial must be granted; and it is accordingly ordered.

We affirm the judgment below upon all the other grounds, suggesting, merely by way of reservation, that in prescribing rules for interpreting bills, some slight modification in the terms employed by the Court would have been desirable, with a view to greater accuracy. We somewhat doubt, also, as to whether or not the testimony of Boynton and Mercer should have been let in, until it appeared that it was the best which the nature of the case admitted of. To say the most of it, it was very vague and unsatisfactory; scarcely definite and certain enough to make the basics .of a verdict.