Swilley v. Hooker

55 S.E. 31, 126 Ga. 353, 1906 Ga. LEXIS 383

• Court: Supreme Court of Georgia
• Decided: August 17, 1906
• Status: Published

Opinion

Atkinson, J.

1. On a note payable to Smith or order and indorsed by the-payee to Swilley, suit was brought in a county court in the name of Smith for the use of Swilley. From the judgment Swilley appealed in his own name to the superior court, and gave a bond, treating himself as the party plaintiff. A motion to dismiss the case was made on the ground that it appeared on the face of the proceeding that Smith had no title to the note and no right to bring suit upon it. The court announced orally that he would sustain the motion. Swilley moved to amend by striking from the declaration the name of Smith and the words “for the use of,” so as to leave the case to stand in his own name as plaintiff. The court refused to allow the amendment, on the ground that it was offered too-late, and dismissed the ease. Held, that this was error. Woodbridge v. Drought, 118 Ga. 671.

2. The fact that the presiding judge had announced orally that he would sustain the motion and dismiss the case, but had not signed any judgment to that effect, did not render a proper amendment then tendered too late, nor authorize him to reject it on that ground. Lytle v. DeVaughn, 81 Ga. 226; Freeman v. Brown, 115 Ga. 23.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent.