Rea v. McGahee

77 S.E. 204, 12 Ga. App. 326, 1913 Ga. App. LEXIS 553

• Court: Court of Appeals of Georgia
• Decided: February 18, 1913
• Docket: 4052
• Status: Published

Opinion

Pottle, J.

There is no statute requiring that an amendment attaching a bill of particulars in a justice’s court shall be served upon the defendant or his counsel. Section 6269 of the Civil Code is a rule of the superior court, and while, under section 4641 of the Civil Code, it has the force and effect of a statute, nevertheless it is applicable only to cases tried in the superior courts and in such other courts as have the same practice and procedure as that which prevails in the superior court. The general rule is that amendments to pleadings need not be served on the opposite party, and-the only exceptions to this rule are those specially provided for by statute. Section 6269 of the Civil Code, which requires service upon the defendant of an amendment attaching a bill of particulars, being applicable only to the superior courts and to such courts as have the practice and procedure that prevails in those courts; and there being no statute requiring that such amendments in justice’s courts shall be served upon the opposite party, the general rule will be held to apply to such courts. The filing in those courts of amendments attaching bills of particulars is sufficient. There are various statutes which undertake to prescribe the practice and procedure in justice’s courts, and it differs in many respects from that prevailing in superior and city courts. In the absence of statutory authority, it can not be held that this particular rule of the superior court, differing from the general rule of practice, is applicable' to suits brought in the justice’s courts. The certiorari was properly overruled.

Judgment affirmed.

Bussell, J,, dissents.