Thompson v. Rabun , 131 Ga. 713 ( 1908 )

Holden, J.

Where minors, by their next friend, brought an action wherein the defendant finally prevailed and obtained a judgment against such minors for costs expended by him pending such litigation, and where the minors, through their next friend, filed an equitable petition to enjoin a sale of their property under such judgment, and the only question submitted to the court upon the trial of the case was whether such judgment should have been rendered against such minors, or against their next friend; held:

{a) The judgment for costs should have been rendered against the next friend, who, upon the adverse termination of the case, was primarily liable for such costs, and the court committed no error in granting such injunction. Nance v. Stockburger, 112 Ga. 90 (37 S. E. 125, 81 Am. St. R. 22).

Submitted May 26, Decided December 19, 1908.

Equitable petition. Before Judge Worley. Glascock superior court. October 16, 1907.

B. F. Walker, for plaintiff in error. I. 8. Peebles Jr., contra.

(&) Upon the trial of the ease the defendant offered to his plea an amendment which was not purely precatory in character, but averred new matter in defense, notice of which was not given in the original answer; and it not appearing that he made any affidavit that such new matter was not omitted from the original answer for the purpose of delay, the court committed no error in disallowing the proffered amendment. Gross v. Whitely, 128 Ga. 79 (57 S. E. 94).

Judgment affm-med.

All the Justices concur.