Morgan v. Hutcheson

123 S.E. 904, 32 Ga. App. 501, 1924 Ga. App. LEXIS 505

• Court: Court of Appeals of Georgia
• Decided: July 15, 1924
• Docket: 15606
• Status: Published

Opinion

Bloodwoetii, J.

1. Exceptions to the refusal of the judge to allow an amendment to the pleadings must be preserved by exceptions pendente lite, unless the bill of exceptions is certified within thirty days from : the date, of the judgment of which complaint is made. In this ease . the amendment was refused on February 5, 1924, no exceptions pendente lite were filed, and the bill of exceptions was tendered to the judge on April 12, 1924, and certified on April 25, 1924. There being no appropriate exceptions to the refusal of the judge to allow the amendment to the plea, the question of the correctness of the court’s ruling in this particular is not before this court for determination. Haley v. Block, 20 Ga. App. 528 (2) (93 S. E. 148).

Decided July 15, 1924. W. B. Kent, for plaintiffs. L. C. Underwood, for defendant.

2. “Where a suit has been dismissed by the plaintiff, in order to bring a second suit for the same cause of action the plaintiff must pay the costs or file a pauper affidavit showing his inability to do so. A failure in this regard furnishes ground for a plea in abatement. White v. Bryant, 136 Ga. 423 (71 S. E. 677),” Collins v. Bulkhalter, 144 Ga. 695 (87 S. E. 888). See Wright v. Jett, 120 Ga. 995 (2) (48 S. E. 345); Williams v. Holland, 9 Ga. App. 494 (71 S. E. 760); Civil Code (1910), §§ 5625, 5626. Under the sections of the code just cited, the rulings in the foregoing cases, and the qualifying note of the trial judge to the amendment to the motion for a new trial, there is no merit in said amendment, and the judge properly directed a verdict in favor of the plea in abatement.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.