Thurmond v. Clark , 47 Ga. 500 ( 1873 )

Montgomery, Judge.

1. We have several times decided that a complainant may amend his bill after a demurrer to it has been sustained by this Court, provided the motion to amend be made at or before the time that the opposite party moves to enter the remittitur upon the minutes, and to make it the judgment of the Court. This, however, contemplates that a substantial amendment is offered. If the complainant, by his proposed amendment, still fails to make a case for equitable interference, the amendment will not save the bill.

2. The single question, then, in this case is, does the proposed amendment make such a case as to entitle the complainant to equitable relief? Undoubtedly he has had his day in Court, and has failed to avail himself of defenses which existed then as now, and were as well known to him at that time as when he offered the amendment to his bill, to-wit: that the defendants procured his drunkenness and obtained his signature, while in that state, to his deed, bill of sale, contract of tenancy and agreement to submit to arbitration; that said award is founded on illegal testimony, and is contrary to evidence and public policy, and awards, among other things, the payment of an illegal judgment by complainant, which had, before that time, been obtained against him by one of the defendants. All these objections should have been taken before the arbitrators, or upon exceptions to the award, when it was proposed to make it the judgment of the Court. The complainant was present at the arbitration, and was not only sworn to abide by it as final, but was also sworn as a witness. The excuse offered for not making the objections at the proper time is ignorance of his right to do so. If this excuse is a valid one, it would be difficult to say when a judgment is final. As to a part of the matter in controversy, there have already been two judgments against the complainant, each supposed to be final — the original judgment complained of as illegal, and the award. Complainant now seeks to reopen that issue for the third time. It is not pretended that there was any misplaced confidence in the defendants, or that they used any artifice or deception, or fraudulent practice, either to induce the mistake of law on the part of the complainant in failing to avail himself, at the proper time, of the defenses set forth, or to prevent its correction. This being so, a Court of equity cannot interfere.

Judgment affirmed.