Snyder v. Webb & Welsh

28 S.E. 976, 101 Ga. 793, 1897 Ga. LEXIS 329

• Court: Supreme Court of Georgia
• Decided: July 14, 1897
• Status: Published

Opinion

Atkinson, J.

1. In arriving at the true meaning of the practice act approved December 16, 1895 (Acts of 1895, p. 44), relatively to suits pending at the time of the passage of the act, it is necessary to construe together sections 2 and 7 of that act. Section 2 provides, “That in all cases now or hereafter pending, the judge at each term shall call the appearance-docket upon some day previously fixed, or on the last day of the term, and upon such call all cases in which the defendant has not filed' a demurrer, plea or answer, or other defense, shall be marked ‘in default.”’ Section 7 provides, “That the defendant, after the time allowed for answer has expired, shall not in any case by amendment set up any new facts or defense of which notice was not given by the original plea or answer, unless at the time of filing such amended plea or answer, containing the new answer, he shall attach an affidavit that, at the time of filing the original plea or answer, he did not have notice or knowledge of the new facts or defense set out in the amended plea or answer.”

Prior to the passage of this act, where a case had been answered at the first term of the court, the defendant was not required to answer so fully, but thereafter he might amend a plea to the merits by insisting upon new and distinct defenses, without first swearing that he did not know of the existence of such defenses at the time of filing his original plea. To. extend the provisions of this act to such a case would cause it to retroact harshly upon the defendant who had conformed to the requirements of the law existing at the time of filing his plea, and the effect of extending the provisions of section 7 of the act would be to cut him off from filing as an amendment a meritorious defense which he would otherwise have been authorized to make. Statutes must be reasonably construed, and where they are capable of two interpretations, that construction is more favored which would tend most to give a full expression to the legal rights of parties under laws existing at the time of their passage; and we therefore think the proper construction of the act in question is such an one as will not deprive a defendant, who has been in all respects diligent, of the benefit of a defense of which he could not avail himself under the changed condition of the law. In the present case it would have been impossible for this defendant to have foreseen, at the time he filed his original plea, that the General Assembly would subsequently pass an act depriving him of the right of amendment, by imposing upon him conditions to which he could not in good conscience conform; and therefore it will not be presumed that such was the intention of that body. The appearance term having already expired at the time of the passage of the act, the right of amendment was controlled by the preexisting laws, and not affected by the new act to which reference has been made. It follows, therefore, that the defendant was entitled to amend his plea without first making the oath required by section 7 of the act, to the effect that, at the time of filing his óriginal defense, he had no knowledge of the fact sought to be set up by way of an amendment to such plea.

2. The suit was upon a promissory note by the endorsees for value. The plea was that of failure of- consideration. There was no allegation in the original plea that the endorsees took with notice of a failure of consideration in the instrument sued upon. The purpose of the amendment was to make the allegation that it was reeeived by them with full notice of this-defense. If the amendment had been allowed, and the plea supported by evidence, it would have defeated the action. It follows, therefore, that the court erred in not allowing the amendment, and, in the face of the offer to amend, in striking the plea of the defendant.

Judgment reversed.

All the Justices concurring.