Miller v. Hawkins

Court of Appeals of Georgia

Miller v. Hawkins

177 S.E. 280, 50 Ga. App. 150, 1934 Ga. App. LEXIS 668

CourtCourt of Appeals of Georgia

DecidedNovember 13, 1934

Docket24005

StatusPublished

This text of 177 S.E. 280 (Miller v. Hawkins) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Hawkins, 177 S.E. 280, 50 Ga. App. 150, 1934 Ga. App. LEXIS 668 (Ga. Ct. App. 1934).

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Opinion

Broyles, C. J.

1. “No amendment adding a new and distinct cause of action, or new and distinct parlies [italics ours], shall be allowed unless expressly provided by law.” Civil Code (1910), § 5683.

2. This was a suit brought by S. P. Miller against J. N. Hawkins on a written contract. An alleged copy of the contract was attached to the petition as an exhibit and showed that Hawkins agreed to purchase from Grant & Company certain shares of stock at $20 a share; that ' Hawkins “this day paid the sum of $50,” and that “90 days from date and for value received I [Hawkins] agree and promise to pay to Corporation Finance Inc., or order, the balance of $...... in twelve equal payments;” that “Corporation Finance Inc. agrees to have transferred and delivered to me [Hawkins], when fully paid in cash, certificates of stock as described above for number of shares specified.” On the back of the contract was written: “The within contract is for valuable consideration this day transferred to S. P. Müller or order, July 20, 1932. Grant & Co., by F. Braswell, Sect. & Treas.” The defendant interposed a general demurrer to the petition, and the plaintiff offered to amend the exhibit attached to the petition “by attaching a correct copy of the note [contract?] sued on, in lieu of the copy attached, so that the copy attached shall read to be payable as follows: ‘I hereby agree and promise to pay to Grant & Company or order/ and so that the words ‘I hereby agree and promise to pay to the Corporation Finance Co., or order’ shall be stricken from said copy. Plaintiff shows that the words ‘Corporation Finance Co.’ in the body of the copy attached to the petition were left in said copy by inadvertence and mistake, and that the same were left in said copy by clerical error and mistake, and that the same were left in said copy by typographical error. Plaintiff shows that he attaches a true and correct copy of the note sued on in this amendment, and prays that the same may be substituted and attached in the place of the copy originally attached.” Held, that the original petition did not set out a cause of action, and the proffered amendment brought in a new and distinct party and set out a new [151]*151cause of action, and tlie court properly disallowed the amendment and sustained the general demurrer to the petition.

Decided November 13, 1934. B. C. Jenlcins, I). D. Veal, A. M. Roan, for plaintiff. M. F. Adams, for defendant.

Judgment affirmed.

MacIntyre and Querry, JJ., eoneitr.

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Broyles, C. J.

1. “No amendment adding a new and distinct cause of action, or new and distinct parlies [italics ours], shall be allowed unless expressly provided by law.” Civil Code (1910), § 5683.

2. This was a suit brought by S. P. Miller against J. N. Hawkins on a written contract. An alleged copy of the contract was attached to the petition as an exhibit and showed that Hawkins agreed to purchase from Grant & Company certain shares of stock at $20 a share; that ' Hawkins “this day paid the sum of $50,” and that “90 days from date and for value received I [Hawkins] agree and promise to pay to Corporation Finance Inc., or order, the balance of $...... in twelve equal payments;” that “Corporation Finance Inc. agrees to have transferred and delivered to me [Hawkins], when fully paid in cash, certificates of stock as described above for number of shares specified.” On the back of the contract was written: “The within contract is for valuable consideration this day transferred to S. P. Müller or order, July 20, 1932. Grant & Co., by F. Braswell, Sect. & Treas.” The defendant interposed a general demurrer to the petition, and the plaintiff offered to amend the exhibit attached to the petition “by attaching a correct copy of the note [contract?] sued on, in lieu of the copy attached, so that the copy attached shall read to be payable as follows: ‘I hereby agree and promise to pay to Grant & Company or order/ and so that the words ‘I hereby agree and promise to pay to the Corporation Finance Co., or order’ shall be stricken from said copy. Plaintiff shows that the words ‘Corporation Finance Co.’ in the body of the copy attached to the petition were left in said copy by inadvertence and mistake, and that the same were left in said copy by clerical error and mistake, and that the same were left in said copy by typographical error. Plaintiff shows that he attaches a true and correct copy of the note sued on in this amendment, and prays that the same may be substituted and attached in the place of the copy originally attached.” Held, that the original petition did not set out a cause of action, and the proffered amendment brought in a new and distinct party and set out a new [151]*151cause of action, and tlie court properly disallowed the amendment and sustained the general demurrer to the petition.

Decided November 13, 1934. B. C. Jenlcins, I). D. Veal, A. M. Roan, for plaintiff. M. F. Adams, for defendant.

Judgment affirmed.

MacIntyre and Querry, JJ., eoneitr.

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Bluebook (online)

177 S.E. 280, 50 Ga. App. 150, 1934 Ga. App. LEXIS 668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-hawkins-gactapp-1934.