Turner v. Plottel

166 S.E. 31, 45 Ga. App. 621, 1932 Ga. App. LEXIS 629

• Court: Court of Appeals of Georgia
• Decided: March 17, 1932
• Docket: 21753
• Status: Published

Opinions

Bell, J.

1. In an action of bail-trover, the petition must contain sueli a description of the property as to make it capable of identification and seizure. McElhannon v. Farmers Alliance Warehouse Co., 95 Ga. 670 (22 S. E. 686) ; McLennan v. Livingston, 108 Ga. 342 (33 S. E. 974) ; Collins v. West, 5 Ga. App. 429 (63 S. E. 540).

2. A description of the property as an “assortment of raincoats,” followed by a list of 23 coats, each of a different lot number and each of a “price” stated, was a compliance with the foregoing rule. Farmers Alliance Warehouse Co. v. McElhannon, 98 Ga. 394 (25 S. E. 558) ; Harper v. Richards, 120 Ga. 379 (47 S. E. 899) ; Hicks v. Walker Brothers Co., 31 Ga. App. 395 (2 6) (120 S. E. 694).

3. Where a trover suit is defective only because there is no allegation of title or of right of possession in the plaintiff, this defect may be cured by amendment. Ellison v. Georgia Railroad Co., 87 Ga. 691 (5, 6, 7) (13 S. E. 809) ; Dunn v. Freeman, 24 Ga. App. 504 (101 S. E. 393).

(а) Nothing to the contrary was ruled in Carter v. Vinson, 17 Ga. App. 469 (87 S. E. 692).

(b) The decision in the case of Selma, Rome &c. R. Co. v. Lacey, 49 Ga. 106 (2), holding that in order to admit of an amendment a valid cause of action must be set forth in the original declaration, was necessarily overruled by the decision in the Ellison case, supra. This is true for the reason that the decision in the case last mentioned, expressly overruled Martin v. Gainesville &c. Railroad, 78 Ga. 307, as well as “any and every other case” in conflict with the rulings then made, and the general reference to other cases must of necessity have included the Lacey case, because the decision in the Martin case was based directly upon the decision in that case.

(c) The conclusion reached in the present case is entirely consistent with the decisions in Davis v. Muscogee Mfg. Co., 106 Ga. 126 (32 S. E. 30) ; Shepherd v. Southern Pine Co., 118 Ga. 292 (45 S. E. 220), in each of which it was held that a petition which fails to set forth a canse of action can not be made the basis of an amendment which seeks not merely to amplify or perfect the allegations in the original petition, but purports to substitute in lieu thereof an altogether different state of facts.

Decided March 17, 1932. Rehearing denied September 21, 1932. J. I. Hynds, for plaintiff in error. W. J. Davis Jr., contra.

4. On application of the above principles, the court did not err in allowing the petition to be amended, nor in thereafter overruling the general and special demurrers thereto.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.