Sylvania Water Supply Co. v. Overstreet , 124 Ga. 235 ( 1905 )

BeoK, J.

(After stating the facts.) No extended argument is required to show that the defendant in the court below was deprived of a material right. We do not know, in view of the state of the pleadings and the evidence when-the case was closed at the time of the hearing at chambers, what the judge’s decision in the exercise-of his discretion would have been had he rendered it upon the case as-then made. But, instead of rendering his judgment then, he reserved his decision, and, pending the consideration of the cause,, permitted defendant in error to file an amendment containing new and material averments. In the petition as it stood before the-amendment was allowed the plaintiff below alleged and complained that the defendant company commenced operations in the year 1904,. giying notice to the citizens of Sylvania at that time as to what its terms and charges would be, fixing them at a certain amount according to the number of hydrants used, fixing a charge for the first hydrant and a lower charge for each additional hydrant used on the premises of those citizens who should take water from said company.. The plaintiff alleged further, that, before putting in pipes-upon his premises and before connecting with the waterworks system of the defendant company, he was informed by the company that the water could not be used for the purpose of watering flowers; whereupon petitioner informed the company that he would not take the water without the privilege of using it in his yard and for watering his flowers; the defendant company then, through its president, informed petitioner that, if he would put in pipes and take the water, he should have the privilege of using it in his yard and for the purpose of watering flowers as petitioner should see fit according to the terms already stated. The defendant company denied a part of the above allegations, but admitted that through its president it did say the charge for water would be seventy-five cents per month for the first hydrant and twenty-five cents per month for each additional hydrant, these charges, however, applying only to hydrants used in residences, and not to such as might be put in yards, flower-gardens, etc. Both parties submitted evidence to support their contentions. In the amendment to the petition, the allowance of which is complained of, it is alleged that the defendant company, by its president, agreed to furnish water at “said rates” as long as the artesian well from which it obtained water would afford sufficient water for “such- purpose” and for drinking purposes, only reserving the right to cease furnishing water in the event the well should fail to furnish a sufficient quantity'for “such purposes.” . . ■ “That said well affords more than ample and sufficient quantity of water for the enjoyment of petitioner of his rights under said contract, as well for watering flowers as for all other purposes. In point of fact said well affords a sufficient quantity of water to more than many times supply the demand of the various customers of the Sylvania Water Supply Company.” Affidavits were submitted to support the new averments in this amendment, and, upon the case as made by the original petition, the defendant’s demurrer and answer, and the amendment to the original petition with all of the aforesaid affidavits, the judge made and rendered the decision now complained of.

The effect of allowing this amendment was to open the case for further demurrer or answer. The opposite party should have been given notice of the amendment and allowed reasonable time to answer the same, and to submit evidence supporting his answer. “An amended bill is considered as an original bill” (Carey v. Smith, 11 Ga. 540), and the right to contest the averments of the former is as complete as the right to answer and contest those of the latter. We must also agree with the contention of counsel for plaintiff in error that the judge erred in receiving and considering the affidavits filed after the bearing, for the reason that no application was made to have the case reopened for this purpose, and no notice was given to the opposite party. In the case of Jowers v. Lott, 96 Ga. 333, this court reversed the judgment of the lower court, for receiving and considering an affidavit and denying to the opposite party an opportunity to submit counter-affidavits. “The ruling of this court has gone to the extent of rejecting all affidavits not filed and of which no notice has been given to the adverse party.” Huff v. Markham, 70 Ga. 284.

The plaintiff in error further excepts to the order allowing the amendment to the petition, on the ground that it sets forth a new cause of action; and to the three affidavits submitted after the hearing, on the ground that they were not entitled in the cause pending. We do not consider the questions raised by these exceptions as properly here for consideration, as the objections are here made for the first time, they not having been made before the trial judge. And that reason for not passing upon them is a valid one, although the plaintiff in error-was ■ denied an opportunity of making them> below; for the presumption is that when the objection is urged at the hearing the ruling thereon will be in accordance with the law.

Judgment reversed.

All the Justices concur.