Allen v. Bone

38 S.E.2d 609, 200 Ga. 765, 1946 Ga. LEXIS 344

• Court: Supreme Court of Georgia
• Decided: June 4, 1946
• Docket: 15491.
• Status: Published

Opinion

Duckworth, Justice.

1. “All parties, whether plaintiffs or defendants, in the superior or other courts, whether at law or in equity, may at any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by.” Code, § 81-1301.

No. 15491. June 4, 1946. J. T. Sisk, for plaintiffs in error. R. Howard Gordon and Rupert A. Brown, contra.

(а) A motion for new trial, being merely a pleading, as ruled in Snelling v. Darrell, 17 Ga. 141, and Thompson v. Georgia Railroad & Banking Co., 55 Ga. 458, may be amended at any stage of tbe cause before final disposition as a matter of right and not merely in the discretion of the court. Hamilton v. Conyers, 25 Ga. 158, 163; Vanover v. Turner, 41 Ga. 577 (2); Girardey v. Bessman, 62 Ga. 654 (3).

(б) This right is not subject to any arbitrary limitation imposed either by the practice prevailing in any particular judicial circuit or by order of the judge in granting a rule nisi. Thomas v. State, 95 Ga. 484 (2) (22 S. E. 315).

2. There is no requirement of law for service of an amendment. Miller v. Georgia Railroad Bank, 120 Ga. 17 (2) (47 S. E. 525); Heflinger v. Heflinger, 161 Ga. 867 (4) (132 S. E. 85). The rule applies equally to an amendment to a motion for new trial, and where service of the original motion and rule nisi is duly made upon, or service acknowledged or waived by, the respondent, it is his duty to follow the ease and take note of everything regularly done therein. Portner Brewing Co. v. Cooper, 116 Ga. 171, 173 (42 S. E. 408).

3. Under the principles of law above set forth, the court erred in rejecting upon the hearing a proffered amendment to a motion for new trial, upon motion by the opposing parties on the ground that their counsel had not been served with a copy of such amendment five days before the hearing, as provided in the order of the court in the rule nisi on the original motion for new trial, and in dismissing the motion for new trial. The requirement in such order placed a limitation upon the right of the movants to .amend, and was without authority of law and nugatory.

Judgment reversed, with direction that the motion for new trial he reinstated, and that the amendment, if not defective other than as contended, he allowed and considered.

All the Justices concur.