Taylor v. Keown ( 1927 )

Bloodworth, J.

(After stating the foregoing facts.) The amendment to the petition merely changed the amount of damages alleged to have resulted from the injury to the plaintiff from $2,000 to $5,000. The petition was not otherwise changed. We do not think that such an amendment so “materially changes the cause of action or defense” (italics ours) as to open the petition as amended to demurrer or plea. Civil Code (1910), § 5652. It is undisputed that the defendant had notice of the suit, that he was properly served, that he had discussed the matter with the plaintiff's attorney, and that he failed to appear in person or by counsel at the calling of the appearance docket or at the trial term. In fact, there is ample evidence supporting the allegation, in the answer to the petition'to set aside the judgment, that “the said Homer Keown told counsel for the plaintiff that he was not going to defend said case, and that so far as he was concerned, plaintiff could go ahead and try his suit and get a judgment against him, because it was not his duty to defend said suit, but the duty of the insurance company.” But should we concede that the defendant was not guilty of laches in failing to appear and file his defense, and that the court erred in failing to sustain the motion to set aside the judgment for all the reasons alleged in said motion, still the error was harmless, because the record shows that the “plaintiff, the said Henry Taylor, voluntarily and in open court and in his answer to the motion of Homer Keown to set aside said verdict and judgment, voluntarily wrote off from said verdict and judgment the sum of $500.” This had the same effect as a withdrawal of the amendment to the petition would have had; it reduced the judgment to the amount for which suit was originally brought, and left the defendant in exactly the same position in which he would have been had the amendment not been allowed. Therefore he was not harmed by said amendment.

In regard to the cross-bill of exceptions, there was conflicting evidence as to each issue raised by the motion to set aside the judgment and which was brought to this court by the cross-bill, and “upon these questions of fact involved the trial judge was the trior and his finding thereon is conclusive.” Montgomery v. Bowen, 20 Ga. App. 493 (2) (93 S. E. 111). Under the facts of the case the allowance of the amendment to the petition resulted in no injury to the defendant, and the trial judge erred in setting aside the judgment rendered in favor of the plaintiff. “To authorize a reversal of the judgment of the lower court, not only error but injury must be shown.” Elrod v. Grant, 9 Ga. App. 309 (71 S. E. 501); Hancock v. Tifton Guano Co., 19 Ga. App. 185 (4) 91 S. E. 246); Goodman v. Brown, 17 Ga. App. 778 (88 S. E. 593); Reid v. Caldwell, 114 Ga. 676 (3) (40 S. E. 712); Smith v. Peacock, 114 Ga. 698 (5) (40 S. E. 757, 88 Am. St. R. 53); Lee v. Pearson, 138 Ga. 646 (5) (75 S. E. 1051); Turner v. State, 138 Ga. 808 (3) (76 S. E. 349); First National Bank of Chattanooga v. American Sugar Refining Co., 120 Ga. 717 (48 S. E. 326); Braswell v. Equitable Mortgage Co., 110 Ga. 30, 33 (35 S. E. 322). The cross-bill of exceptions shows no valid reason why the verdict and judgment in favor of the plaintiff should have been set aside.

Judgment on main bill of exceptions reversed; on cross-bill affirmed.

Broyles, C. J., and Luke, J., concur.