McCook v. Alligood , 28 Ga. App. 812 ( 1922 )

Stephens, J.

1. Under the ruling announced in Sattes & Wimer Lumber Co. v. Hales, 11 Ga. App. 569 (75 S. E. 898), the jury was authorized to find a verdict for the plaintiff against the claimant in a proceeding to foreclose a laborer's lien under the Civil Code (1910), § 3335, upon property belonging to the claimant. While in the case under consideration no equitable amendment was filed by the plaintiff as in the case cited, yet evidence in support of the plaintiff’s claim, under the rule there laid down, having been admitted without objection, the plaintiff is entitled to the benefit of such testimony as if the amendment, which would have been allowable, had been filed. Artope v. Goodall, 53 Ga. 318, 324 (3); Field v. Martin, 49 Ga. 268 (3); Haiman v. Moses, 39 Ga. 708 (3); Savannah &c. Ry. Co. v. Barber, 71 Ga. 644 (2), 648; Central R. Co. v. Attaway, 90 Ga. 656, 659 (16 S. E. 956). The superior court therefore did not err in overruling the certiorari.

2. It not appearing that the case was brought to this court for the purpose of delay only, the motion of the defendant in error, that damages be assessed against the plaintiff in error, is denied. .

Judgment affirmed.

Jenkins, P. J., concurs.