Thompson v. Kimbrel , 46 Ga. 529 ( 1872 )

Montgomery, Judge.

The order of the Ordinary establishing a copy of the lost letters of administration, having been set aside by the Superior Court, the only question left for this Court to consider is, was the amendment of the records of the Court of Ordinary, properly allowed? Section 3449, of the Code, gives a wide discretion to Courts in the allowing or refusing of amendments of their records. In all cases where such amendments will clearly be in furtherance of justice, the amendments should be allowed. To make the record show what actually took place, and speak the truth, we think is clearly within the rule.

It is argued that the original order which was amended is void, for want of jurisdiction in the Court, and therefore, the amendment should be rescinded. That cannot affect the question of amendment. Assuming that the Court had no jurisdiction to grant the order to sell the land, the parties complaining can take advantage of it as well after as before amendment, whenever, and wherever it conflicts with their rights: Code, 3536.

2. The sole question is upon a motion to amend a record so as to make it show what actually occurred, will the proposed amendment make the record speak the truth? Whether the original order was legally passed or not, cannot, on such a motion, be considered. A motion to rescind an order allowing such an amendment has no wider scope. If it appear that the record, as amended, is false, the order allowing the amendment should be rescinded. The i'ssse is narrowed to this inquiry.

3. When the amendment is allowed upon an ex parte application it cannot affect persons not parties to the proceedings. If they choose afterwards to come in and move a rescission of the amendment, they have the right to show, if they can, that the facts do not warrant the amendment; failing to make such a showing, and the amendment appearing a proper one, it should be sustained. This, of course, leaves the quesiton as to the validity of the judgment entirely untouched. If void, it is a nullity; if there is any ground for vacating it, that course is still open: Walher vs. Scott, 29 Ga., 397.

Judgment affirmed.