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RICHARDSON v. HAIRRIED

Supreme Court of Georgia1947-09-05No. No. 15913
202 Ga. 610

Summary

Holding. The trial judge did not err in disallowing the two proposed amendments to the defendant's answer because they lacked the personal affidavit from the defendant required by statute, and the judgment was affirmed.

The defendant sought to amend his answer twice during trial, but the trial judge rejected both proposed amendments. Under Georgia law, parties have broad rights to amend pleadings at any stage, including after the answer deadline has passed. However, when a defendant proposes to add new or contradictory defenses, the amendment must be accompanied by the defendant's own affidavit swearing that the new facts were not omitted from the original answer to cause delay and that the amendment is not being offered for delay purposes. In this case, neither proposed amendment carried the required personal affidavit from the defendant himself—one was verified by his attorney and the other by his daughter-in-law, both of whom are legally insufficient. Because the record does not show what specific objection the trial judge made to the amendments, the court presumed the trial judge properly rejected them for the valid reason that they lacked the mandated affidavit. Additionally, the plaintiff's evidence at trial was sufficient to support the judgment entered in his favor, making it unnecessary to review the trial court's jury instructions.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether amendments to pleadings require personal verification by the defendant
  • Standards for allowing amendments to answers after the filing deadline
  • Burden of proof when challenging a trial judge's refusal to allow amendments
  • Whether plaintiff's evidence was sufficient to support the verdict

Procedural posture

The defendant appealed the trial judge's rejection of two proposed amendments to his answer and the subsequent judgment rendered against him.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Candler, Justice.

(After stating the foregoing facts.) The first question to be disposed of is whether the trial judge erred in disallowing the two proffered amendments to the answer. In this State the right of either party to amend pleadings is very broad, and the practice of allowing them is liberal. Jenkins v. Lane, 154 Ga. 454 (115 S. E. 126). “All parties, whether plaintiffs or defendants, in the superior or other courts, whether at law or in equity, may at any stage of the cause, as a matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by.” Code, § 81-1301. A defendant may, after the time allowed for answer has expired, by amendment change, alter, or modify his original answer (Phelps v. Daniel, 86 Ga. 363 (3), 12 S. E. 584; Massengale v. Pounds, 108 Ga. 762, 33 S. E. 72; Wynn v. Wynn, 109 Ga. 255, 34 S. E. 341; Georgia Railroad & Banking Co. v. Gardner, 113 Ga. 897 (2), 39 S. E. 299; Alabama Midland Ry. Co. v. Guilford, 114 Ga. 627, 40 S. E. 794), and in addition may set up new, distinct, and even contradictory defenses of which notice was not given in the original answer (Stanton v. Burge, 34 Ga. 435; Hagerstown Steam Engine Co. v. Grizzard, 86 Ga. 574 (2), 12 S. E. 939; Mendel v. Miller, 134 Ga. 610 (2), 68 S. E. 430; Estill v. Estill, 147 Ga. 358, 94 S. E. 304; United States Fidelity &c. Co. v. Clarke, 187 Ga. 774, 2 S. E. 2d, 608), if the defendant attaches an affidavit “that at the time of filing the original plea or answer he did not omit the new facts or defense set out in the amended plea or answer for the purpose of delay, and that the amendment is not offered for delay,” as provided in the Code, §- 81-1310. The affidavit required by this section, however, is one to be made personally by the defendant and not by his attorney or some other person for him. Royal Fraternal Union v. Hall, 134 Ga. 843 (68 S. E. 728). In the instant case, neither of the amendments offered was personally verified by the defend ant, though present in court during the trial. One was verified by his attorney, the other by his daughter-in-law.’ The record does not disclose what objection to or attack was made upon the two proffered amendments to the original answer; and since it is the duty of a plaintiff in error to show error, this court will assume that the trial judge properly refused their allowance as amendments to the defendant’s answer for any good reason, including the absence of the accompanying affidavit required by law. Campbell v. Gormley, 184 Ga. 647, 650 (192 S. E. 430). In White v. Little, 139 Ga. 522 (77 S. E. 646), this court said: “The burden of showing error rests on the excepting party. If he excepts to the refusal to allow an amendment, and does not show the ground or grounds of objection made to it in the trial court, the refusal to allow it will not be held to be error if its rejection appears to be proper for any reason. The presumption will be that the trial court rejected it for a proper reason, if there is one.” And this court again, in Sewell v. Anderson, 197 Ga. 623 (30 S. E. 2d, 102), held the same. Since, in the case at bar, the failure to attach to the amendments a proper affidavit as required by law constitutes a valid reason for their disallowance, and since the record is silent as to whether or not the proffered amendments were objected to, or demurred to, and if so, on what grounds, it will be presumed by this court that the trial judge rejected them because of the failure to attach a proper affidavit, and for that reason his judgments of disallowance are not erroneous.

The plaintiff’s evidence demanded the verdict which was rendered in his favor, and this being true, it is unnecessary to consider whether the charge of the court is open to any of the criticisms made upon it. White v. Southern Ry. Co., 123 Ga. 353 (4) (51 S. E. 411); Poole v. Atlanta Joint Stock Land Bank, 189 Ga. 59 (5 S. E. 2d, 368); Lunsford v. Armour, 194 Ga. 53 (20 S. E. 2d, 594).

Judgment affirmed.

All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.