Smith v. Smith Et Al., 119 Ga. App. 619, 168 S.E.2d 609 (1969)
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Frank M. Gleason, for appellees.Irwin W. Stolz, Jr., for appellant.
Where, after an order of adoption was reversed because of lack of proof of consent to the adoption by the presumed father the proposed adopting parents offered an amendment alleging that such consent had been obtained since the decision of the appellate court and setting out a copy thereof, the trial court did not err in overruling a motion to strike the amendment.
Mr. and Mrs. Earl Smith filed a petition for the adoption of two children of one Inge Dement Kole: Ellen Liana, born in California and presumably conceived at a time when the mother was married to Dement, and Evy Lynn, born in Germany over a year after she and Dement were divorced and before she married Kole. The petitioners' son, Earl Smith, Jr., filed objections to the adoption, claiming himself to be the natural father of both children. The trial judge found against the objector, and entered a final order of adoption granting the children to the petitioners. On appeal the Supreme Court affirmed the adoption of Evy Lynn, the German born child, but reversed as to Ellen Liana, the American born child, on the ground that Dement, not Smith, must be legally presumed to be her father and his consent to the adoption was not shown. See Smith v. Smith,
Where a judgment in favor of one of two parties litigant is reversed by the appellate court without direction, and where only questions of fact, or mixed questions of law and fact are involved, the legal result is a new trial, not the rendition of a judgment without trial an as a matter of course. Schley v. Schofield & Son,
Under the Civil Practice Act, amendments properly filed relate back to the date of the original pleading, and the court may in a proper case allow amendments setting forth transactions occurring subsequent to the date of the pleading sought to be supplemented. Code Ann. 81A-115. We are concerned here only with a question of fact: if the child was born in wedlock the consent of the father was necessary to the adoption. Whether or not the child was legitimate was a fact in issue; the Supreme Court held that she was, and that therefore the consent of the father was a condition precedent. Upon this judgment being entered in the trial court the petitioners by amendment offered to supply written proof of such consent. No prior order of dismissal had been taken, the case was still pending at the time the amendment was offered, and the trial judge properly overruled the motion to strike under these circumstances.
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.
1969
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