Purity Ice Works v. Rountree , 104 Ga. 676 ( 1898 )

Lewis, J.

1. From an examination of the facts which are stated in the official report, it will be seen that the only defense filed by the plaintiff in error to the suit was that it had made certain partial payments upon the notes sued on, with which it had not been credited. The plaintiff below thereupon amended his petition, admitting the payments alleged to have been made, and prayed judgment for the balance due on the notes. The effect of this amendment was to leave the case without any issue to be tried. This being a suit upon certain unconditional contracts in writing, and as there was no issue left to be tried by a jury, the court did right in rendering a judgment in accordance with the prayer of the amended petition. Civil Code, §5076.

2. The defendant certainly has no right to complain of an amendment offered by the plaintiff, which simply admits the facts set up in its own plea. We know of no law or rule of practice which would require notice of such an amendment given to the defendant before the same could be properly allowed by the court. The law gives a trial judge considerable latitude in the exercise of his discretion in the call of a docket, and there is nothing in the record to indicate any abuse of such discretion in taking up this case out of its order. Even if the defendant was entitled to notice of plaintiff’s amendment before the rendition of the judgment, or if it was not proper practice to render the judgment before the case was reached on the regular call of the docket, these were simply mere irregularities, and can constitute no sufficient ground for setting aside the judgment, unless the defendant shows that he has thereby been deprived of making some meritorious defense to the action. The motion in this case does allege that the defendant had other and good defenses which could have been set up by amendment to its answer, and could have shown that it was not legally liable on the note sued on, and that such defenses were not known at the time this original answer was filed; but it nowhere appears what these defenses were, nor why defendant by due diligence could not have had knowledge of them when it filed its original plea. The court should have been apprised of the facts upon which such new defense w'as based, so that it could have determined for itself whether, if the judgment had been set aside, the result might have been different on a trial of the case. Smith v. Sheffield & Co., 83 Ga. 103; Phillips v. Taber, 83 Ga. 572; Rooney v. Richers, 103 Ga. 576.

3. Damages are awarded because it is plain that this case was brought here for delay only.

Judgment affirmed, with damages.

All the Justices concurring.