Henry & Hutchinson v. Slack , 96 Ga. App. 56 ( 1957 )

Felton, C. J.

Generally, when a petition is dismissed it carries the whole case, including the answer, out of court, provided no affirmative relief is sought in the answer. In the first instance, separate counts of a petition must be specifically and individually answered. In order for a party to amend a pleading there must be something to amend by. Notwithstanding all these propositions of law, where a third count is added to a petition by amendment, at a time when the first two counts and answers thereto were still in the case the elimination of the first two counts at a later date, together with the answers thereto, does not prevent an amendment to the answer adding the defense of estoppel to the presumptive denial of the allegations of the third count of the petition. At the time that count 3 was added by amendment, no answer to count 3 was necessary. It became the law of this case that “the allegations of count 3 are'to be treated as having been simply denied.” Henry & Hutchinson v. Slack, 91 Ga. App. 353, 356 (85 S. E. 2d 620). It has always been the law of this State that wherever the law presumes a simpie denial of the allegations contained in a pleading, the law also presumes the right to amend at any stage of the cause although such denial was not in writing. In other words, an answer may be amended so1 long as the defendant is not in default. Barrett v. Pascoe, 90 Ga. 826 (17 S. E. 117). Prior to the pleading act of 1893, the law presumed an answer to a petition, although no answer was filed, where counsel for the defendant filed his name on the docket, and, such answer being presumed (though it was not in writing) it might be amended at any stage of the cause, and by the addition of any affirmative defense except those special pleas required .to be filed within thirty days. Wall v. McNeil, 20 Ga. 239; Solomon & Son v. Creech, 82 Ga. 445 (9 S. E. 165). In 1893, Code § 81-306 was added forbidding the filing of a plea of general issue to the petition, and from there on denials of the allegations of a petition were required to be in writing but the rule was unchanged that the defendant need not answer an amendment to the petition in order to gain the presumption of law that the allegations of the amendment are denied, so that the law as to answering amendments is the same now as formerly as to both petition and amendments—that is, when a defendant answers denying the allegations of a petition the law presumes a denial of allegations made by the plaintiff in an amendment to the petition and the defendant may amend at any stage of the cause with the exceptions hereinbefore noted. The answers to counts 1 and 2 were not stricken in the sense that they were out of the case as if they had never been filed. The fact that counts 1 and 2 had been answered inured to the benefit of the defendant in furnishing him an anchor to which a presumption of a denial of count 3 was attached. They were out of the case so far as counts 1 and 2 were concerned but were not out of the case, as above shown, as to count 3 and the defendant had a right to amend his answer by a plea not required to be filed in a special time limit, at any time before verdict. A plea of estoppel is an affirmative defense. Hughes v. Cobb, 195 Ga. 213, 231 (23 S. E. 2d 701). An affirmative defense may be allowed by amendment at any stage of the cause. Case Threshing Machine Co. v. Donalson, 12 Ga. App. 121 (2) (76 S. E. 1049). Where the law presumes a denial of the plaintiff’s aliegations the law must also presume there is enough for the defendant to amend by. What the law regards as a pleading is a pleading regardless of whether the subject matter is in writing or not. The law does not require a piece of paper to effectuate its aims, intents and purposes. There can be an amendment by implication. Ga. R. & Bkg. Co. v. Flynt, 89 Ga. App. 315 (79 S. E. 2d 377); Mills v. Jones, 89 Ga. App. 502 (60 S. E. 2d 59). See also Byrom v. Ringe, 83 Ga. App. 234 (63 S. E. 2d 235).

The amendment was not filed too late. The general rule is that a pleading can be amended properly at any time before verdict. Code § 81-1312 provides: “An amendment to a petition, or plea, or answer, which materially changes the cause of action or defense, opens the petition, plea, or answer, as amended, to demurrer or plea. The opposite party shall be allowed a reasonable time for answering such amendment. An immaterial amendment shall not so open the petition or other pleading, and need not be answered at all, or shall be answered instanter.” The expression in the above Code section to the effect that the opposite party shall be allowed a reasonable time for answering such amendment refers to a situation where the time for answering has expired and the filing of a material amendment gives the party a right to plead which he would not have otherwise had if no amendment had been filed. This would cover a case where the case was in default and the time for answering had expired and it would cover cases where the material amendment filed subjected the petition to special pleas, the time for the filing of which had expired. We do not think that the above Code section requires pleading to an amendment under any other circumstances than those just above cited. In view of what has been said in divisions 1 and 2, the court did not err in allowing the plea of estoppel as against the objection and demurrer that there was not enough to amend by or that the amendment was filed too late.

The plaintiff’s objections and demurrer should have been sustained because the plea was without merit as a plea of estoppel. A plea of estoppel of the nature filed in this case operates only for the benefit of a bona fide purchaser without notice. Brown v. Tucker, 47 Ga. 485 (3). In his plea in the instant case the defendant did not allege that he was a bona fide purchaser without notice nor did he allege facts to show such, and in the absence of such an allegation, the plea was not a good plea of estoppel and was subject to demurrer. Groover v. Simmons, 163 Ga. 778 (137 S. E. 237); Carmichael v. Texas Co., 52 Ga. App. 751 (184 S. E. 397).

All of the proceedings subsequent to the allowance of the amendment were nugatory. The court erred in allowing the amendment setting forth an estoppel.

The case was considered by the court as a whole under the act of 1945.

Judgment reversed.

Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur. Quillian, J., concurs specially.