Henderson v. Henderson

640 S.E.2d 254, 281 Ga. 553, 2007 Fulton County D. Rep. 177, 2007 Ga. LEXIS 39

• Court: Supreme Court of Georgia
• Decided: January 22, 2007
• Docket: S07A0302
• Status: Published

Opinion

SEARS, Chief Justice.

The appellant, Clara Henderson, appeals from an order of the probate court ruling that she did not timely file an amended caveat raising the issue that a will she was challenging was a forgery. Because we conclude that the trial court erred in this ruling, we reverse.

Where, as here, there is no pre-trial order, an amendment to a complaint “may be filed up to the time evidence is taken at trial.” 1 In this case, the trial court ruled that the appellant filed her amended caveat “after the beginning of the proceedings” and that it was therefore untimely. The trial court’s order, however, does not make a finding regarding whether the amendment was filed before or after evidence was taken at trial. Moreover, our review of the record shows that, although the appellant did not file the amended caveat in the trial court clerk’s office until the morning the trial was scheduled to begin, she did so before the trial began. In addition, at the beginning of the trial, before the trial court heard any evidence, the parties and the court discussed the fact that the appellant had filed the amended caveat the morning of the trial. Thus, the record shows that the appellant filed the amended caveat before any evidence was taken. Accordingly, as there was no pre-trial order, the trial court erred in refusing to permit the appellant to raise the issue asserted in the amended caveat. We thus reverse the judgment of the trial court.

Decided January 22, 2007. Goldberg & Cuvillier, Laurene C. Cuvillier, for appellant. Albert E. Jones, for appellee.

Judgment reversed.

All the Justices concur.

1 L. S. Land Co. v. Burns, 275 Ga. 454, 456 (569 SE2d 527) (2002), quoting Haywood v. Aerospec, 193 Ga. App. 479, 480 (388 SE2d 367) (1989).