Morrow v. Merchants' & Planters' Bank

35 Ga. 267

• Court: Supreme Court of Georgia
• Decided: December 15, 1866
• Status: Published

Opinion

Harris, J.

[1] The defendant in error brought suit against Morrow for the recovery of a balance of $3,000, due on a draft in its possession. "When the case was called for trial, the attorney for the Merchants’ and Planters’ Bank moved to amend his declaration by adding after the name of the Bank the words “ who sues for the use of "William R. Phillips.”

Previous to this motion Morrow had procured, by purchase or otherwise, an amount of the notes of said Bank e([ual to the aggregate of the principal and interest of the balance due on the draft, and had placed his plea of the tender of said notes as a set-off against the demand of the Bank on file with the Clerk. The motion to amend was objected to by Morrow’s counsel; the Court allowed the amendment to be made. The first error assigned in the bill of exceptions is the allowance of said amendment, and we think the objection well made, under the facts presented by the record. FI jwover liberal are our statues permitting amendments, and disposed, as we are, to sanction all that are necessary for the ends of justice and to prevent delays and non-suits, we are dearly of the opinion that an amendment which virtually substituted anew plaintiff and deprived the defendant of a right of set-off of the notes of the bank, should not have been allowed.

[2] The next error assigned is that of the Judge, after the amendment before mentioned, on motion of the plaintiff he-low, directing the plea of defendant of set-off to be stricken out.

Had the amendment allowed been proper, there would have been no error in striking the plea; hut as the amendment was erroneous, the striking of the plea is necessarily so.

The pleadings should be restored to their status at the time these motions were .made and sustained.

The judgment below is therefore reversed.