Reid v. Jones

Cobb, P, J. (After stating the foregoing facts.) The cause of action attempted to be set forth in the original petition was the liability arising, under the charter of the' bank, against those persons upon whom the charter imposed an individual liability for the debts of the bank. In Reid v. DeJarnette, 123 Ga. 787, it was held that the individual liability imposed by the charter of the [116] 'bank in question was a liability upon sueb stockholders only as became 'such by subscribing to the capital stock, and not upon shareholders who by way of succession from the original stockholders became owners of the stock. The original petition was defective in that it did not allege that the defendant belonged to that class of stockholders who were the original subscribers to the capital stock of the company. Without amendment the petition should have been dismissed upon demurrer. The design of the pleader was to recover from those stockholders who were liable under the charter. The amendment does not depart from this design. The amendment did not contain a new cause of action against the defendant entirely independent of what was alleged and stated in the original petition, but it merely identified the defendant as a party who was liable under the individual liability clause of the charter, which was the foundation of the cause of action. As was said by Mr. Chief Justice Bleckley, in Ellison v. Georgia Railroad Co., 87 Ga. 692, on page 710: “Any cause of action whatever would be new and distinct if no trace of it could be found in .the declaration. There must be some trace of a particular cause of action in the declaration, in order that it may contain enough to amend by-And as the original cause must be adhered to, and no other substituted in its place, the trace furnished must be sufficiently plain and distihct to identify the particular cause of action to which the declaration points or refers. If it points to no one cause more than to any other, it will be too indefinite and should be treated as nothing better than a blank.” On page 718 the learned Chief Justice says: “If the plaintiff really has the identical cause of action which he has endeavored to plead, why should the mistake of his pleader in leaving out one of its necessary constituents, because he supposed it need not go in, be any bar to amending? Is not the chief object of amendment the correction of mistakes?” The pleader may have been mistaken as to the number of persons embraced under the individual liability clause of the charter; but if the defendant belongs to the class which is liable, no new cause of action is added so far as she is concerned, for the amendment simply identifies her as belonging to the class upon whom liability is imposed. See, in this conection, Wheatley v. Glover, 125 Ga. 711(16), 726. Judgment reversed. All the Justices concur.