Mcg Development Corporation Et Al. v. Bick Realty Company., 140 Ga. App. 41, 230 S.E.2d 26 (1976)
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Judgment reversed. Bell, C. J., and Stolz, J., concur.
Summary
Judgment reversed. Bell, C. J., and Stolz, J., concur.
Text
Charles T. Magarahan, for appellants.
"The right to amend is as broad as the Atlantic Ocean and as saving as the power of salvation." That argument was standard operating procedure for litigants seeking to amend pleadings prior to our adoption in 1966 of the Civil Practice Act. The contention was based on the numerous decisions stemming from the brilliant exegesis by Chief Justice Bleckley in Ellison v. Ga. R. Co.,
1. It is a well settled principle of procedural law that the failure to verify an answer, if required by rule or statute, is an amendable defect. Rigby v. Powell,
2. Code Ann. 81A-115 (a) provides, in part: "A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pre-trial order. Thereafter the party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires."
This provision is to be liberally construed in favor of the allowance of amendments, particularly when the party opposing the amendment is not prejudiced thereby. Hoye v. Service Products Corp., 286 FSupp. 299 (E.D. Wis. 1968); 6 Wright & Miller, Federal Practice and Procedure: Civil, 427, 1487. Mere delay in seeking leave to amend is not a sufficient reason for its denial. "[D]elay is not the sole controlling factor. It should not be permitted to defeat the policy of liberality in permitting amendment unless it will have prejudiced the plaintiff in some way." Maschmeijer v. Ingram, 97 FSupp. 639, 643 (SDNY 1951).
3. We think the trial court abused its discretion in refusing to allow defendants leave to amend. Defendants sought in good faith to correct an inadvertent oversight; the amendments were not sought as a dilatory measure; plaintiff would not have been put to disadvantage by allowance of the amendments. In the interest of justice, leave to amend should have been granted. "The Court does not take the position that the defendant should be penalized because of an apparent oversight on behalf of its counsel. The sporting element of pleading is no longer with us." Schwartz v. American Stores Co., 22 FRD 38 (E.D. Pa. 1958).
4. As an additional argument for affirmance of the default judgment appellee asserts that the answers were filed after expiration of the 30-day period following service without payment of costs. This contention was not raised below. "One may not fail to raise issues in the trial forum, and then for the first time in this court raise questions as to matters not ruled upon or excepted to at the trial court. Velkey v. Grimes,
Gershon, Ruden, Pindar & Olim, Max Olim, for appellee.
1976
Notes:
1. This word is defined in the American Heritage Dictionary as "chat." Leo Rosten in "The Joys of Yiddish" says "I have never encountered a word that conveys 'heart-to-heart chit-chat,' as warmly as does shmooz." The latter is a variant spelling of this expressive word now in our English language.
2. Rule 8 reads, in part: "In all suits on an unconditional contract in writing . . . where a defense has not been sworn to by the party filing such defense . . . it shall be the duty of the Judge . . . to whom application is made to enter a default judgment as if no appearance of any kind or character had been made; provided, however, that said case has been duly published in the calendar of the Court and has come on regularly for hearing. . ."
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This document cites
- Supreme Court of Georgia - RIGBY v. POWELL et al., 233 Ga. 158, 210 S.E.2.d 696 (1974)
- Supreme Court of Georgia - VELKEY v. GRIMES, Sheriff., 214 Ga. 420, 105 S.E.2.d 224 (1958)
- Supreme Court of Georgia - GAMBLE, administrator, v. GAMBLE, et al., 207 Ga. 380, 61 S.E.2.d 836 (1950)
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