Jones v. Henderson

49 Ga. 170

• Court: Supreme Court of Georgia
• Decided: October 15, 1872
• Status: Published

Opinion

Triple, Judge.

The amendment allowed by the Court was to correct the mistake in the pleadings as to the date when the note was due. This was not making or substituting a new cause of action, unless something further appeared showing it to be such. Had the amendment been the striking out one note and inserting another, and if the defendant below had made it appear that he was or bad been misled by the first description of the note and the allowance of the amendment, and that “ he was less prepared for trial, and how, than he would have been if such amendment had not been made/7 the right to a continuance by defendant would have been complete: Devised Code, section 3470.

The showing that was made for a continuance was on a ground which existed, and was well known to defendant, when the case was called, and applied to either and both the notes — ■ to the one due in 1868 as well as the one due in 1869. Defendant did not show that he had been ousted of the land, or that any proceedings threatening such a result had ever been instituted. His great default was in not having taken any steps either to set up or establish any defense in the case. These facts, taken in connection with the counter-showing made by plaintiff, satisfy us that the motion to continue was properly overruled.

Judgment affirmed.