Tompkins v. Venable

19 Ga. 33

• Court: Supreme Court of Georgia
• Decided: September 15, 1855
• Docket: No. 9
• Status: Published

Opinion

By the Court.

Starnes, J.

delivering the opinion.

[1.] This is just one of those cases in which we have so often decided that amendments may be made.

We suppose from the argument, that the Court below put his decision upon the ground that the affidavit not being properly entered, there was no appeal; and if there were no appeal, there was no case in Court, and nothing by which to amend. But this was a mistake.

The record shows that the appellant did all which was reasonable and diligent on his part, in order to have his appeal properly entered; and that his original affidavit was probably rightly drawn. If it were not so entered on the minutes, it was not his fault, but the fault or mistake of the Clerk. The attempt was made, therefore, to have the appeal entered rightly, and if it were not so done by mistake, the law will consider that done which was intended to be done, and permit an amendment which will cure the error, if offered within any reasonable time.

We have, in effect, decided this point in several cases. In the case of Little vs. Ingram, (16 Ga. Rep. 194,) we went so far as to hold, that an amendment, mine pro tunc, would be allowed, oven after judgment, where process had been waived before the Clerk, and he authorized to make an entry accordingly, but which that officer had failed to do. See that case for our views more at large upon the point.

Let the judgment be reversed.