Rozear v. J. G. McKenzie Lumber Co.

Court of Appeals of Georgia

Rozear v. J. G. McKenzie Lumber Co.

4 S.E.2d 718, 60 Ga. App. 662, 1939 Ga. App. LEXIS 134

CourtCourt of Appeals of Georgia

DecidedSeptember 22, 1939

Docket27702

StatusPublished

Cited by2 cases

This text of 4 S.E.2d 718 (Rozear v. J. G. McKenzie Lumber Co.) 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.

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Rozear v. J. G. McKenzie Lumber Co., 4 S.E.2d 718, 60 Ga. App. 662, 1939 Ga. App. LEXIS 134 (Ga. Ct. App. 1939).

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Opinion

Felton, J.

(After stating the foregoing facts.)

1. It was error for the court to disallow the amendment. A denial of the paragraphs of a suit on open account is not a plea of the general issue. Code, § 81-306; DeSoto Plantation Co. v. Hammett, 111 Ga. 24 (36 S. E. 304). The rule adopted by the city court of Bainbridge is void in so far as it is contradictory to the general law on the subject of the allowance of amendments. Code, § 81-1310. The court has no discretion to disallow an amendment, when otherwise good, merely because it sets up new facts, when a proper affidavit is attached. Wynn v. Wynn, 109 Ga. 255 (34 S. E. 341). The amendment was not subject to general demurrer; and if subject to objections in the nature of special [664]*664demurrers, it is obvious that the defendant could have had no •opportunity to perfect the amendment when the disallowance order was not rendered until after the case proceeded to trial. In such circumstances the disallowance of the amendment will be deemed to have been based on an objection in the nature of a general demurrer. In view of this ruling it is not necessary to pass upon the other assignments of error, most of which were affected by the error is disallowing the amendment. That error rendered nugatory the further proceedings in the case.

Judgmen\ reversed.

Stephens, P. J., and Sutton, J., concur.

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Felton, J.

(After stating the foregoing facts.)

1. It was error for the court to disallow the amendment. A denial of the paragraphs of a suit on open account is not a plea of the general issue. Code, § 81-306; DeSoto Plantation Co. v. Hammett, 111 Ga. 24 (36 S. E. 304). The rule adopted by the city court of Bainbridge is void in so far as it is contradictory to the general law on the subject of the allowance of amendments. Code, § 81-1310. The court has no discretion to disallow an amendment, when otherwise good, merely because it sets up new facts, when a proper affidavit is attached. Wynn v. Wynn, 109 Ga. 255 (34 S. E. 341). The amendment was not subject to general demurrer; and if subject to objections in the nature of special [664]*664demurrers, it is obvious that the defendant could have had no •opportunity to perfect the amendment when the disallowance order was not rendered until after the case proceeded to trial. In such circumstances the disallowance of the amendment will be deemed to have been based on an objection in the nature of a general demurrer. In view of this ruling it is not necessary to pass upon the other assignments of error, most of which were affected by the error is disallowing the amendment. That error rendered nugatory the further proceedings in the case.

Judgmen\ reversed.

Stephens, P. J., and Sutton, J., concur.

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4 S.E.2d 718, 60 Ga. App. 662, 1939 Ga. App. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rozear-v-j-g-mckenzie-lumber-co-gactapp-1939.

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