Hardee v. Lovett

Simmons, Justice. Lovett brought his action against Hardee in the following form: “Georgia, Hall county.—To the superior court of said county: “The petition of Nathaniel Lovett shows, that Gardner S. Hardee of said county is indebted to your petitioner in the sum of one thousand dollars, besides interest, on a promissory note due in January, 1868, which said note thé said Gardner S. Hardee refuses to-pay. “Wherefore your petitioner prays process may issue requiring the said Gardner 8. Hardee to be and appear at the next superior court for said county, to answer your petitioner’s complaint. “Dan. W. Rountree, Howard Thompson, plaintiff’s attorneys.” [206] Hardee demurred to the declaration on the ground that no cause of action was set out, and that it showed on its face that the action was barred. Lovett amended his declaration by attaching thereto a copy of the note, which copy showed the amount to be $1,080 instead of $1,000, and by alleging that Hardee, the defendant, after signing the note, had removed to the State of Florida, and had resided there ever since, up to the time he was sued in this case. The defendant objected to these amendments, on the ground that they added a new cause of action, and that there was nothing in the original declaration to amend by. The objection was overruled, and he excepted. On the trial of the case, the jury returned a verdict for the defendant. The plaintiff made a motion for a new trial, which was granted by the court, and the defendant excepted and brought the case here for review. 1. The first question in this case is, whether the court erred in allowing the amendments to the original declaration. We do not think it did. Cheney v. Dalton. 46 Ga. 401; Ross v. Jordan, 62 Ga. 298, as to allowing copy of the note to be attached. The original declaration is almost in the exact words of the form prescribed by section 3391 of the code. It only omits the date of the note and a copy thereof, and is defective only in these two points. We think it set out a cause .of action, though a defective one, and was amendable. The code prescribes a form which may be used in complaint for land, and declares that when said form is used, an abstract of the title relied on for recovery shall be annexed thereto. In the case of Camp v. Smith, 61 Ga. 449, where a complaint for land was brought under this short form and no abstract of title was annexed thereto, this court held that the declaration was amendable by annexing the abstract. We see no difference in allowing amendment by annexing an abstract of title, [207] and allowing amendment by attaching a copy of the note sued on, as was done in this case. See also Merritt v. Bagwell, 70 Ga. 578, where this question is also decided. The amount claimed in the original declaration being less than the amount of the note, there is no inconsistency in the amendment and the original declaration, the effect being merely to relinquish the amount of eighty dollars included in the note. Nor was there any error in allowing the other amendment, alleging the non-residence of the defendant. This was an effort on the part of the plaintiff to avoid the plea of the statuté of limitations. It added no new cause of action or new parties. Declarations under these statutory forms may be amended as other declations at common law. Akin v. Ordinary, 54 Ga. 59. 2. The court granted a new trial. This is the first grant of a new trial in the case, and we are hot disposed to interfere with the discretion of the court in granting the same. Judgment affirmed.