Rogers v. Solomons

17 Ga. 598

• Court: Supreme Court of Georgia
• Decided: April 15, 1855
• Docket: No. 100
• Status: Published

Opinion

By the Court.

BenninG, J.

delivering the opinion.

I shall first consider the case of Rogers against Solomons and others.

In that case, the sole question is, whether Rogers should have been allowed to file the supplemental bill ?

We think that if the allegations in the supplemental bill be true, equity is in that bill.

And that being so, the supplemental bill ought to have been allowed, as a matter of course, unless some special reason existed to make the allowance of it improper.

[1.] Did any such reason exist ? Perhaps there did until the passage of the Act of the last Legislature on the subject of amendments. (Pamph. 1853-'4, 48.) By that Act, parties, whether at Law or in Equity, may, in any stage of the cause, amend their pleadings in all respects, whether in matter of form or matter of substance.

Now the difference between . a supplemental bill and an amendment to the bill, is, for all practical purposes, merely technical. Under the maxim, therefore, that Equity follows the Law, Courts of Equity ought, as to supplemental bills, to follow this Statute as to amendments.

And, indeed, the matter of this supplemental bill is such matter as is suitable for introduction into the bill by way of amendment. (1 Daniel’s Ch. Pr. 510, 511.) And by the Statute aforesaid, the time for amending never going by, this • ■matter, should this supplemental bill be refused, would, if the-plaintiff wished it, have to be introduced into the bill by way of amendment. To refuse the supplemental bill, therefore, would be merely to produce double trouble — additional ex■pense — more delay.

We think the supplemental bill ought to have been allowed;, and so, that the judgment of the Court below, in thi3 case, ought to be reversed.

[2.] And this, in effect, disposes of the case of Solomons, and others against Rogers; for if the supplemental bill had' been allowed, as it should have been, then the plaintiffs’ case-would have become such that the injunction should not be dissolved until the equity of that supplemental bill should have been sworn off. The supplemental bill would have made the-plaintiffs’ such' as to call for a new answer.

We think, therefore, that it is well that the Court below' refused to dissolve the injunction.