Buffington v. NALLEY DISCOUNT COMPANY , 117 Ga. App. 820 ( 1969 )

117 Ga. App. 820 (1969) 162 S.E.2d 212

BUFFINGTON
v.
NALLEY DISCOUNT COMPANY.

43480.

Court of Appeals of Georgia.

Submitted March 4, 1968. Decided May 9, 1969.

Telford, Wayne & Stewart, David G. Mercer, for appellant.

Smith & Smith, Douglas E. Smith, for appellee.

FELTON, Chief Judge.

This is an appeal from a judgment on the pleadings for the plaintiff in an action by Nalley Discount Company against Claude Otis Buffington on a promissory note and bill of sale to secure debt apparently signed by Don Strickland and defendant as co-makers. The defendant filed an answer in which he alleged that he signed the note as surety for Don Strickland and that Don Strickland and the plaintiff substituted an automobile for the one originally conveyed as security for the debt evidenced by the note other than the one first conveyed, all without the knowledge of the defendant and without his ratification. After the judgment on the pleadings was rendered for the plaintiff, and without a vacation of the final judgment, the defendant filed an amendment to his answer alleging that the substitution of collateral increased the surety's risk. The amendment was not allowed on the stated ground that judgment had already been entered in the case.

The court did not err in rendering a judgment on the pleadings for the reason that the defendant's answer did not allege that the substitution of collateral by the principal parties increased the surety's risk by impairing the collateral and because the amendment to the answer came too late, after a final judgment was rendered in the case. Code Ann. § 109A-3-606 (Ga. L. 1962, pp. 156, 278). See also Overcash v. First Nat. Bank of Atlanta, 117 Ga. App. 818.

This case was decided under the Civil Practice Act. Under this Act a pleading may be amended after judgment but only insofar as to make it conform to the evidence. Code Ann. § 81A-115.

Judgment affirmed. Eberhardt and Whitman, JJ., concur.