Burns v. Chandler

61 Ga. 385

Opinion

Bleckley, Justice.

The court erred, in disallowing the proposed amendment to complete the surveyor’s return. The plat, without the prescribed affidavit to support it, was but a part of what the surveyor was bound to furnish. Code, §2008. An application for homestead should not fail because the surveyor has omitted to perform his whole duty, when it is in the power of the court to have the omission supplied. Undoubtedly, the ordinary could have received the affidavit whilst the case was pending before him ; and if so, there is no reason why the superior court could not do the same pending the appeal. In acting on an appeal from the ordinary, the superior court may allow the prior proceedings to be amended. 4 Ga., 456 (1); 18 Ib., 473 (text); 45 Ib., 552. Though the homestead was applied for in 1875, the amendment was not cut off because it was not proposed until after the constitution of 1877 was ratified and took effect. Notwithstanding this constitution provided for a smaller homestead than that allowed by the constitution of 1868, it did not defeat applications for homestead which were pending under that constitution. The application should not have been dismissed, but the proposed amendment should have been allowed.

Judgment reversed.