Askew v. Singletary , 11 Ga. App. 727 ( 1912 )

Hill, C. J.

(After stating the foregoing facts).

1. The motion to dismiss the writ of error is denied. The amendment to the petition was filed under the order of the judge, though he subsequently struck it for legal insufficiency. In such case the amendment may be specified as a part of the record. McCall v. Herring, 116 Ga. 235 (42 S. E. 468); McGarry v. Seiz, 129 Ga. 298 (58 S. E. 856). Counsel for movant relies upon the case of Schaeffer v. Central Ry. Co., 6 Ga. App. 282 (64 S. E. 1107), followed in Ledbetter v. Savannah Brewing Co., 8 Ga. App. 282 (68 S. E. 950). A casual reading of these two decisions suggests an apparent conflict with the ruling in McCall v. Herring, supra; but in these cases it appeared that the trial judge did not order that the amendment be filed, but simply held that an amendment was necessary to meet the demurrer, and granted time for the amendment to be made, and subsequently disallowed the amendment on the ground that it was insufficient to meet the requirements of the order previously passed. In the instant case the judge distinctly granted permission to file the amendment, although lie subsequently disallowed it; and Judge Powell, in the Schaeffer case,, supra, states that it is held that if an amendment is filed under order of the judge, it becomes a part of the record, though he subsequently strike it for legal insufficiency, and in such case the amendment may be specified as a part of the record. Judge Powell’s reference to the case of Atlantic & Birmingham R. Co. v. Southern Pine Co., 116 Ga. 225, as holding this, is evidently a miscitation, it doubtless being his intention to refer to McCall v. Herring, supra, which is in the same volume.

2. The judgment sustaining- the special grounds of the demurrer is of peculiar phraseology.' It sustains the second, third, and fourth grounds of the special demurrer, with the proviso that if an amendment is offered by the plaintiff within ten days, meeting the second ground of the demurrer, then the demurrer would be overruled in toto. Construing this ruling altogether, it is manifest that the trial judge meant that if the amendment subsequently filed by the defendant was sufficient to meet the second ground of the demurrer, it would also meet the third and fourth grounds of the demurrer.

The second ground of the demurrer attacks the petition because “it does not disclose what personal property of the value of $500 the defendants possessed and converted to their own use, or the nature of such property, or how or when, or in what manner, it was possessed and converted to their own use.” The amendment which was filed and disallowed, we think, very fully meets this ground of the demurrer. It alleges that the personal property sought to be recovered, or the value thereof, consisted of a specified number of cross-ties in the county of Early, located “along the right of way of the Central of Georgia Railroad, from Hilton, Ga., to Arlington, Ga.,” of the value of 35 cents each. But, irrespective of this amendment, the petition as originally filed was not subject to special demurrer on this ground. Paragraph nine of that petition specifically alleged that 1,500 cross-ties, aggregating the value of' $500, for which the suit was brought, were taken by the deceased without authority, from where they were located, to wit, “upon and along the right of way of the A. & N. Railway Company at or near Philema, in Lee county, Georgia.” The allegations of the original petition and the amendment are inconsistent, it is true, but this inconsistency can be explained by evidence, and the plaintiff would have the right, under the allegations of the petition as amended, to claim any or all of the cross-ties which had been converted by the deceased, to the extent of $500. While in our opinion, therefore, it was not necessary to amend the petition-to meet the demurrer, as the allegations in the original petition set forth a cause of action, yet the amendment as filed, amplifying the allegations of the petition, was within the right of the plaintiff, and the petition as amended was sufficient to let in proof of the allegations made, and the judgment dismissing the petition was erroneous.

Judgment reversed.

Pottle, J., disqualified.