Lytle v. DeVaughn , 81 Ga. 226 ( 1888 )

Bleckley, Chief Justice.

1. The bond required by statute, (code, §8976,) in order to entitle the mortgagor to a hearing on his affidavit of illegality, was .in a'larger penalty and with a somewhat different condition from that expressed in the bond which was given in this case. But the offer to amend in both respects, which was made pending the proceeding in the court below, ought to have been allowed. By the code, §3504, “ an appeal bond and all other bonds taken under requisition of law in the course of a judicial proceeding, may be amended, and new security given if necessary.” The bond in question, being one taken under requisition of law, in the course of a judicial proceeding, to wit, the interposition, acceptance and return of an affidavit of illegality, and the investigation consequent thereupon, is within the designation, “other bonds,” just quoted, and consequently its amendment is expressly authorized. True it is that the bond given was so defective that the officer should not have accepted it nor returned the papers to the court, but on the contrary should have proceeded to sell the property which he had seized by virtue of the mortgage _/?. fa. Brantley vs. Baker, 75 Ga. 676. But as he did accept the bond, and return the papers to court for trial, there was in fact a judicial proceeding in progress, and when that is so, the bond, however defective, is amendable. The code does not contemplate the amendment of only slight defect, but of all defects in bonds of this class. In Brantley vs. Baker the illegality was dismissed, and that was affirmed, but the right to amend was not considered, there being, so far as appears, no offer to amend. Here the offer to amend and the refusal to allow it constitute the whole case.

2. But it is said the offer was too late. We think it was in time, for although the court had announced orally that the motion of the opposite party to dismiss the illegality was granted, no order of dismissal had been entered, or so far as appears signed, or even drawn up. The record indicates, or affords ground for inferring, that the offer was instant and immediate upon the oral announcement made by the court of its decision. That announcement, the court being one of record, did not terminate the case; it remained pending in court to await the preparation and entry of the final order or judgment. By analogy to the rule for amending pleadings, (code, §3470,) the bond was amendable “ at any stage of the cause,” and when the offer was made to amend, the cause was in a stage, though certainly the last stage .of its existence. It was about to expire but was not dead. Another analogy to the rule for pleadings (§8482) would have authorized the court to impose terms of granting leave to amend when applied for so late. In denying leave altogether, and in dismissing the case in face of the application or offer to amend, we think the court erred.

Judgment reversed.