Jernigan v. Carter

McCay, Judge.

1. If the facts set forth in the plea tendered as an amendment be true, a judgment in favor of either the plaintiff or defendant would be void, since it is absurd to say that anything can be determined in a suit where one of the parties was dead at the commencement of the suit. If this was not known to the defendant when the suit was brought, and she has brought it to the knowledge of the court' as soon as she ■discovered it, she is in no laches, and she was entitled to her amendment.

2. "We do not think it was necessary, under our law, to withdraw the plea of general issue before putting in this plea. Nor would this be true even if it were a simple plea to the jurisdiction of the court, or any other plea, even a dilatory one. If the facts presented showed a right to put in the plea at the second term, that was, in our judgment, sufficient. It was not necessary to withdraw the plea to the merits. Under our law strictly, all pleas must be filed at the first term — both pleas in bar and pleas in abatement, and if so, they must often be both on the record at once: Code, secs. 3452, 3461. And the statute specially provides that no part of an answer (plea) shall be stricken because it is in contradiction of some other: Code, section 2452. It will be noted also that even as to pleas to the jurisdiction, whilst it is provided that a plea to the merits waives it, yet it is also in the same section (3461) provided that this shall not be so if the plea to the *235 jurisdiction be made at the same time. Perhaps the logic of things may require that the record ought not to show a plea to the merits until it is settled that there is a proper case in court. But that is the same logic which required pleas to be consistent with each other, and the whole structure of that logical system which common law lawyers laud so highly has long since been dispensed with in Georgia. We see no objection, under our law, to filing a plea to the merits and a plea in abatement at the same first term. The plea in abatement ought to be first disposed of; but to require one to withdraw 3ns plea of general issue when, after the first term, facts occur to authorize a plea in abatement, is, as it seems to us, not only not required by the statute but is contrary to the entire tenor of our system of pleading. We do not discuss the other question, to-wit: whether the judge was right in refusing to delay the progress of the cause whilst the plea was being written. Such things must necessarily be largely in the discretion of the court. If the facts have at that moment become important, or been just discovered, we think the principles of justice would require a few moments delay, but if the necessity for the plea is from the neglect of the party, we should hesitate to interfere. In this case it seems absurd to pretend that the defendant has just discovered she is executrix, and we would not interfere. She has been a most unreasonable time in finding out what her office was. We say the same in reference to the motion to continue. If the defendant was without counsel it was her own fault, and the mistake was not to be used to delay the plaintiff. We, however, reverse the judgment for what we think was error, refusing the plea denying that plaintiff was in life at the commencement of the suit.

Judgment reversed.