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Complaint on note; from Pierce Superior Court-- Judge Thomas. December 6, 1949.
1. Where an assignment of error is based upon a judgment of the trial court disallowing an amendment to an answer, and where the bill of exceptions does not reveal the ground of objection raised, the presumption is that the amendment was rejected for proper cause. The burden is upon the party excepting to the ruling to show otherwise, and the judgment of the trial court will not be reversed by this court if it appears that the amendment was improper for any reason. White v. Little, 139 Ga. 522 (2-b) (77 S. E. 646); Richardson v. Hairried, 202 Ga. 610 (1) (44 S. E. 2d, 237).
2. Where a special demurrer to the only paragraph of an answer attempting to set out an affirmative defense to a suit on a promissory note is sustained, and no exceptions to this ruling are preserved nor error assigned there on in the bill of exceptions, the ruling that the petition is subject to such special demurrer becomes the law of the case. Consequently, so much of a subsequent amendment offered by the defendant as contains a mere reiteration of facts previously stricken on demurrer should be disallowed for this reason. See Baker v. Atlanta, 22 Ga. App. 453 (96 S. E. 332).
3. "An amendment offered by a defendant, after the time for filing an answer has expired, setting up a new defense of which no notice was given in the original answer, and not accompanied by his affidavit that the new defense was not omitted from the original answer for the purpose of delay, and is not then offered for that purpose, constitutes a valid reason for rejecting the proffered amendment." Richardson v. Hairried, supra. See also Code 51-1310; Bass Dry Goods Co. v. Granite Mfg. Co., 119 Ga. 124 (4) (45 S. E. 950); Cunningham v. Huson Ice & Coal Co., 26 Ga. App. 302 (2) (105 S. E. 860).
4. For the reasons hereinbefore outlined, both the judgment of the trial court disallowing the amendment and the final judgment are without error.
William Maron, the plaintiff in the trial court, sued Claude Smith on a promissory note given for a part of the purchase price of an automobile and made a part of the conditional-sale contract. Suit was brought in the Superior Court of Pierce County. The defendant filed a verified answer admitting jurisdiction and denying the sum sued Upon. The answer "neither admitted nor denied, but required strict proof" of the remaining allegations of the petition which set out the note and its terms. Paragraph 6 of the defendant's answer attempted to set up various defenses and counterclaims to the effect that the automobile had not been purchased by the defendant but by his minor son; that the defendant signed the note upon the plaintiff's representation that he would never be called upon to pay anything on it; that the defendant could not read the note but was induced to sign the same because of the plaintiff's fraudulent misrepresentations; that about five weeks after its purchase, because of faulty steering gear "or for some other reason unknown to the defendant" it left the road and the defendant's son was injured thereby. The defendant prayed judgment for $430 for the resulting medical expenses and loss of services of his son. On October 29, 1949, demurrers to paragraph 6 were sustained. No exception was taken to this judgment. On December 5, 1949, an amendment was offered to paragraph 5 which set out a plea of failure of consideration in that the automobile when sold was defective, dangerous and of little value; that said defects were latent and not known to the defendant but were known to the plaintiff; that the plaintiff falsely represented the automobile at the time it was sold to him to be in good working condition; that fraud was practiced upon him in the procurement of the note and contract in that the plaintiff represented that the same was neither a note nor a contract but simply a statement from him to make the sale legal, and that it did not call on him to pay any amounts which might be due on the automobile; that these statements were false and fraudulent and made for the purpose of deceiving the defendant and did deceive him; that he relied upon them to his injury; that he is illiterate, and could not read the contract, and that the plaintiff refused to read the same to him or allow him to have it read to him. This amendment was accompanied only by a verification of its contents. It is apparent that a part of the amendment contained matter of defense already stricken upon demurrer, and a part of it sought to set up a new ground of defense of which notice had not been given, after the time for filing the answer had expired. On December 6 the new amendment was disallowed, the case went on for trial, and judgment was entered in favor of the plaintiff. Error is assigned upon this judgment and upon the ruling of the trial court disallowing the amendment by direct bill of exceptions.
S. Thomas Memory, for plaintiff in error.
Saturday May 23 06:17 EDT

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