Sullivan, Cabot & Co. v. Rome R. R.

28 Ga. 29

• Court: Supreme Court of Georgia
• Decided: March 15, 1859
• Status: Published

Opinion

By the Court.

Lumpkin, J.,

delivering the opinion.

When this case was first tried in the circuit court, the defendant, that is, the Rome Railroad Company, moved for a non-suit. The application was refused — the defendant excepted and brought his writ of error to this court. (25 Geo. Rep. 228.) We reversed the judgment of the court below; and when the remittitur was sent back, a motion was made by the defendant to enter the judgment of reversal on the minutes of the court.

Cotemporaneously with this motion the plaintiff asked leave to amend his declaration, so as to make it correspond with his proof. This was denied, and Sullivan, Cabot & Co. excepted.

We think the amendment should have been allowed. Suppose the circuit judge, in the first instance, should have granted the non-suit, would it not have been competent for the plaintiff to have amended his writ so as to make it conform to the case as proven by the testimony Í Most assuredly the judgment of reversal by this court could not do more than this. It does not terminate a case proprio vigore, but our judgments have to be carried into effect by the circuit court. Here, then, is a stage of the proceeding at which it is the right of the party under the statute, to amend his pleadings. And the law is good. It saves delay and cost — two of the greatest evils attendant on the administration of justice.

Judgment reversed.