Demington v. Douglass

43 Ga. 353

• Court: Supreme Court of Georgia
• Decided: July 15, 1871
• Status: Published

Opinion

McCay, Judge.

By our Code, the right of amendment is given in very broad terms: “ The pleadings may be amended in all respects, whether in form or substance:” Code, 3429. Again, by section 3436, “ When it becomes necessary for the purpose of enforcing the rights of such plaintiff, he may amend by substituting the name of another person suing for his use.” In this case the legal, formal plaintiff, is not purposed to be changed. The note is payable to Demington. The legal title is in him, and there is, in fact, nothing proposed here that changes the legal parties to the suit. The usee’s name is put in at the start, at the option of the legal plaintiff. It is his business and not the business of the defendant. Pie is not bound to put his name in the declaration at all. If the plaintiff does so, the Court will recognize it. We see no reason why he may not change it at his pleasure, only so, that thereby he does not injure the defendant. The putting in of the name of a usee at law, is not necessary in any ease, except for his (the usee’s) protection, and is, in fact, nothing but a declaration by the plaintiff that he is not, himself, the true equitable owner of the debt. We think the amendment ought to have been allowed, and that the affidavit of Mr. Gunn, who knew the facts and was interested in the suit, ought to have been permitted. If this made such a change in the legal rights of the defendant as would deprive him of any just defense, he might then complain; but there is nothing to show that such is the case here.

Judgment reversed.