Pryor v. Leonard , 57 Ga. 136 ( 1876 )

Bleckley, Judge.

1. Here was a mere irregularity. There was no attempt, on this motion, to create a judgment. A judgment already existed against all the defendants, and the omission to make it full enough as to the administrators was amendable: 53 Georgia Reports, 387; 54 Ibid., 538. The amendment was warranted by the record. It was needed for conformity. It was, prima fade, beneficial to the defendants, and perhaps could have been made without notice to any of them: Saffold vs. Wade, 56 Georgia Reports, 174.

2. That a partial payment had been made on the judgment, to the plaintiff’s attorney, was not a good reason for not making the record speak the truth. As between the parties, the amendment would relate back to the date of the judgment— Saffold vs. Wade, supra. The amendment would utter no legal voice for or against the payment. As to that, it would be silent, and, consequently, would be no obstacle to a future-assertion of it in resistance to any attempt to enforce payment a second time.

3. Of course, it was altogether too late for the administrators to set up that they did not have notice of the debt before administering in full. -They do not pretend that they did not have notice of the suit, or were not duly served with the declaration and process. If they had a defense it should have been presented in proper time.

4. As to the surety, he need not and cannot interfere against this amendment because his risk has been increased by what has transpired since the judgment or before. The judgment was entered up in due time. It is against the surety as well as against the administrators, and is not void but irregular only. Thus, this case and the one in 52 Georgia Reports, 555, are unlike. In that case there was no judgment. The effort was to create one against the surety and the principal both. In this case the judgment is perfect as to the surety, and the motion is, to perfect it as to the administrators. Surely, this should be done, whether the surety is discharged or not. The administrators are not discharged; and why should they not be pursued, and how can they be regularly pursued without this amendment? The amendment may prove beneficial to all parties concerned, for while it will not aid the judgment so as to bind property in the hands of bona fide purchasers (12 Georgia Reports, 281,) it will doubtless make it available as against that which may have been distributed to the heirs since the judgment was rendered, and is still found in their hands. And, for aught that appears in the record, it is by distribution only that the estate has been administered. But in any event, whether the surety is now discharged depends not at all upon allowing or disallowing this amendment. Such an amendment cannot possibly prejudice him. He can assert his discharge quite as well after it is made as before.

5. The distinction between no judgment and one that is simply irregular, will dispose of the other point made by the surety; namely, that he was discharged by notice to sue, and that the judgment was fraudulent as to him, having been taken in violation of an arrangement between the attorneys to the contrary. Were there no judgment, this could be urged against a motion to enter one against the surety: 25 Georgia Reports, 681. But the irregularity now in question should be corrected, whether the surety has cause to open the judgment or not. The right to amend is very broad: 46 Georgia Reports, 529; 45 Ibid., 117.

Judgment affirmed.