Carey v. Ector

7 Ga. 99

• Court: Supreme Court of Georgia
• Decided: July 15, 1849
• Docket: No. 19
• Status: Published

Opinion

By the Court. —

Warner, J.

delivering the opinion.

The error assigned to the decision of the Court below is, the allowing the defendant to amend her answer upon the showing made for that purpose.

[1.] The rule in regard to the amendment of a sworn answer in Chancery, is remarkably stringent. Where, however, there has been a clear mistake of a fact, the defendant must move to put in a supplemental answer, and accompany his motion with an affidavit, in which he must swear, that when he put in the original answer, he did not know the facts or circumstances upon which he applies, or any other circumstances upon which he ought to have stated the facts otherwise; or that when he swore to his original answer, he meant to swear, in the sense which he now desires to be at liberty to swear to it. 2 Maddock’s Chan. Practice, 376. Wells vs. Wood, 10 Vesey, 401. Linsey vs. Wilson, 1 Vesey Beame, 149. Bowen vs. Cross, 4 John. Ch. Rep. 375. Martin vs. Anderson, 5 Georgia Rep. 390.

The bill which the defendant answered, was filed against her, John Banks and others. Not to know who were her co-defendants in the bill which she was answering, betrays gross negligence on her part, or that of her solicitors. All the facts incorporated in the proppsed supplemental answer, were as well known to the defendant’s solicitors when they drew her answer, as at the time of the application, “except that since the writing out of said original answer, they have discovered that John Banks owned a greater number of shares than he has been sued for.” The statement of the defendant’s solicitors is, that the defendant “ of her own knowledge, knows but little, or anything, of the facts set forth in the proposed amendment;” that little, however, may be the very matter proposed by the amendment, which her solicitors say they did not know. In any event, her affidavit to the point would have been much more satisfactory. In Wells vs. Wood, Lord Eldon said, “A defendant making this application, must make out such a case, that it shall appear due to general justice to permit the issue to be altered.” 10 Vesey, 401. In Bowen vs. Cross, 4 John. Ch. Rep. 377, Chancellor Kent said, “there can be no doubt that the application ought to be narrowly and closely inspected, and z.just and nec'essary case clearly made out.” So far from the defendant having made out a just and necessary cáse for the exercise of the discretion of the Court in favor of the proposed amendment of her answer, no other object can be accomplished by allowing it, that we can discover, than to prejudice the complainant by delay. To allow a defendant to amend her answer in the particular proposed, and upon the showing made for that purpose, would be, in our judgment, to establish a most mischievous practice; therefore we feel constrained to control the discretion of the Court below in allowing it.

Let the judgment of the Court below be reversed.