Harrison v. Joiner

101 S.E. 763, 24 Ga. App. 578, 1919 Ga. App. LEXIS 941

Opinions

Bkoyles, O. J.

1. The bill of exceptions in this case not only contains an exception to the disallowance of an amendment to the defendant’s plea, but also contains an exception to the final judgment rendered in the case. Therefore, there is no merit in the motion of the defendant in error to dismiss the bill of exceptions on the ground that the plaintiff in "error can not bring a direct bill of exceptions complaining of the disallowance of an amendment to the defendant’s plea.

2. Where a plea of res adjudicata could have been filed at the appearance term of the case, it is too late to file it at the trial term. Merritt v. Bagwell, 70 Ga. 578 (3-a), 585.

(a) The instant case was returnable to the February term, 1917, of the trial court; the original answer of the defendant was filed February 6, 1917, and the amendment to the answer, which set up a plea of res adjudicata, was tendered June 6, 1919, at the trial term. In this amendment ¿t appeared that the judgment relied on as a bar to the plaintiff’s cause of action was rendered on December 7, 1916. It therefore clearly appears on the face of the amendment itself that the plea of res adjudicata could have been filed at the appearance term of the court, to wit, in February, 1917. It follows that the court did not err in disallowing this amendment.

Decided December 10, 1919.

Complaint; from city court of Dublin—Ira S. Chappell, judge pro hac vice. June 6, 1919.

Larsen & OrocJcett, for plaintiff in error. J. S. Adams, contra.

Judgment affirmed.

Bloodworth, J., concurs. Lulce, J., dissents.