HENRY HUTCHINSON v. SLACK

This is the third appearance of the case in this court; however, the parties to the case on its first and second appearance were different. The case originally sounded Henry v. Slack. Later by amendment Henry Hutchinson, Inc., suing for the use of Joel T. Henry was substituted for Joel T. Henry as plaintiff so that the case was then and has ever since been styled Henry Hutchinson, Inc., for use of Joel T. Henry v. Slack. We repeat a part of the statement of facts reported in Henry Hutchinson, Inc., for use, etc. v. Slack, 91 Ga. App. 353 ( 85 S.E.2d 620) when the case made its second appearance: "Joel T. Henry, as transferee of Henry Hutchinson, Inc., brought an action of trover against S. B. Slack, in two counts, to recover the value of certain described items of personal property.

"In the first count it is alleged that Slack gained possession of certain items of the plaintiff's property by purchase at a sheriff's sale, which was void by reason of the excessiveness of the levy made by a constable under a distress warrant sued out by Slack against Henry Hutchinson, Inc., for past-due rent. The defendant filed his answer of general denial and his demurrers to this count.

"In the second count it is alleged that Slack gained possession of certain additional items of the plaintiff's property by purchase at the same sheriff's sale referred to in count 1, and the sale was void as to that particular property since no valid levy had ever been made on that property. The defendant filed his answer of general denial and his demurrers to this count.

"The trial court sustained the general demurrers to each of the two counts and dismissed the petition. On review by this court, however, that judgment was reversed. See Henry v. Slack, 86 Ga. App. 198 ( 71 S.E.2d 96), where the material allegations of those two counts are detailed.

"Subsequently to that decision of this court, Henry struck the first count of his petition by amendment, and added a third count, in which he struck his name as the plaintiff in the case and substituted that of Henry Hutchinson, Inc., suing for his use. In this count he alleged that he was entitled to the value of all the property purchased by Slack at the sheriff's sale, as the sale was void; and that Slack had obtained no valid title to the property, as the levy was void by reason of the constable's tortious conduct, instigated by the defendant, in ejecting Henry Hutchinson, Inc., from the premises on which the property was located and which it held as tenant of Slack. He also alleged that the purported sale and levy were void, as the attempted seizure of the property located in one of the two buildings in question was not a seizure in the name of the whole of the property in either or both of the two buildings; and he further alleged that the sale and levy were void `because said constable did not seize and reduce the particular said articles to his possession, dominion, or control, in that said constable did not point out, or move, or group said particular articles, or set the same aside in any one place in both or either of said buildings, and did not remove same from said premises, did not make an inventory of same, and did not put in writing or sign of any kind on same, or in or on the outside of said buildings, or elsewhere on said premises to give notice that said articles were under said purported levy, and did not place or leave same in anyone's care or charge, and did not get anyone to agree to keep same for him, and did not remain to keep same in charge himself, or do anything else to give the slightest notice of said purported levy.'

"The defendant filed no answer to the amendment adding the third count, but interposed general and special demurrers on various grounds. His demurrers were all overruled, and no exception appears to have been taken to that judgment.

"Upon the trial of the case the court directed a verdict for the defendant on the second count, and although the plaintiff excepted to that judgment, the exception was abandoned. The jury returned a verdict in favor of the defendant on the third count, the only count with which the jury was concerned."

A new trial was granted as to count three of the petition on the ground that the defendant had been allowed to introduce evidence that the plaintiff was estopped to seek recovery for the value of the chattels alleged to have been converted by the defendant though that defense had not been pleaded.

On the return of the case to the superior court the defendant on January 24th, 1955, offered a pleading which he denominated a plea to the answer setting up the pleas of general issue and estoppel, in the following language: "Comes now the defendant, with leave of the court first had and obtained, and amends his answer by adding the following paragraphs: 1. In answer to count 3 of plaintiff's petition defendant further denies that there was an illegal, tortious, or void levy or sale of the properties described in said petition, but asserts that the said levy and sale was regular and legal in every particular. 2. Defendant answers said count by alleging that if the said levy and sale were illegal in any manner, that the plaintiff acquiesced in said proceedings, agents and officers of Henry Hutchinson, Inc., defendant in the distress warrant, and Joel T. Henry knew of the levy and was present at the sale and raised no objection to the levy and sale. Defendant alleges that having raised no objection, but having permitted the sale to proceed without protest, the plaintiffs are estopped from asserting that the levy and sale were illegal and void." The trial court construed the paper to be an amendment to the answers that the defendant had filed to count one of the petition previous to that count being stricken on September 1, 1953, and to count two of the petition before that count was finally adjudicated on June 7, 1954, and allowed it as such subject to objections and demurrer. The plaintiff filed its objections and demurrer to the pleadings allowed as an amendment. The objections were: "1. Plaintiff objects to the allowance of defendant's said amendment of January 24, 1955, upon the ground that there is no answer or plea pending in said case upon which said amendment can be based. 2. Plaintiff objects to the allowance of defendant's said amendment of January 24, 1955, upon the ground that count one of the petition in said case having previously been stricken by amendment, and the court upon the trial of said case at the June term, 1954, having directed a verdict for the defendant on count two of said petition, and plaintiff having abandoned its exceptions thereto, the issues raised by said counts one and two and defendant's answers thereto having been concluded and finally determined, said pleadings are functus officio, and defendant's said answers to said counts one and two are incapable of being amended, and are incapable of furnishing a foundation to support defendant's said amendment of January 24, 1955. 3. Plaintiff objects to the allowance of defendant's said amendment of January 24, 1955, upon the ground that the defendant has never filed any answer or plea to said count three which was added to the petition by an amendment allowed and filed on October 30, 1952, and the answer which said amendment seeks to amend is the answer filed by defendant to counts one and two of said petition, which said counts and defendant's said answers thereto, are no longer pending, and said amendment is not an amendment to any pending pleading in said case, but is an attempt on the part of defendant to file an answer and plea for the first time to said count three, which said answer and plea comes too late. 4. Plaintiff objects to the allowance of defendant's said amendment of January 24, 1955, upon the further ground that even if the pleadings consisting of counts one and two and defendant's answer thereto were still undisposed of and still pending in said case, and therefore amendable, defendant's said amendment which alleged that it is an amendment to his answer, is an allegation that it is an amendment to his answer to counts one and two, same being the only answer ever filed by defendant in said case, and said amendment not being germane to the issues involved in counts one and two and not being germane to the answer filed to said counts, is not allowable. 5. Plaintiff objects to the allowance of defendant's amendment of January 24, 1955, upon the ground that defendant cannot properly and legally file an answer and plea to one count of said petition by incorporating the same in a purported amendment to an answer to other counts, therefore, defendant's purported amendment to his answer to counts one and two, which in reality is not an amendment to his answer to said counts one and two, but which shows on its face that it is an attempt under the guise of amending his answer to said counts one and two, all of which said pleadings have been terminated and are now functus officio, to indirectly file an answer and plea to said count three which was added to said petition by an amendment allowed and filed October 30, 1952. 6. Plaintiff further objects to the allowance of defendant's amendment of January 24, 1955, upon the further ground that while defendant labels said writing as an amendment to his answer to counts one and two of said petition, its contents reveal that it is an answer and plea to count three of said petition which was added by an amendment duly allowed and filed on October 30, 1952, and being offered more than two years and two months after the addition of said count three to said petition, said answer and plea comes too late. 7. Plaintiff objects to the allowance of paragraph 1 of defendant's amendment of January 24, 1955, upon the ground that the defendant's answers to counts one and two did not and do not constitute an answer to count three of said petition, and cannot be construed as answering said count three, and defendant's attempt to file an answer in paragraph 1 of said amendment to said count three, which was added to said petition by an amendment duly allowed and filed on October 30, 1952, comes too late. 8. Plaintiff further objects to the allowance of paragraph 1, of defendant's amendment of January 24, 1955, upon the ground that defendant not having filed any answer or plea to count three which was added to said petition by an amendment duly allowed and filed on October 30, 1952, there is no pleading to said count three by which defendant can amend, and nothing to support paragraph 1 of said amendment seeking to file for the first time an answer to said count three, which comes too late. 9. Plaintiff objects to the allowance of paragraph 2 of defendant's amendment of January 24, 1955, upon the ground that defendant not having filed any answer or plea to count three which was added to said petition by an amendment duly allowed and filed on October 30, 1952, there is no pleading to said count three by which defendant can amend, and nothing to support paragraph 2 of said amendment seeking to file for the first time a plea to said count three, which comes too late. 10. Plaintiff objects to the allowance of paragraph 2 of defendant's amendment of January 24, 1955, upon the ground that defendant not having filed any answer or plea to the material amendment duly allowed and filed on October 30, 1952, adding count three to said petition, which said failure to do while not relieving plaintiff from the burden of proving the allegations therein, precludes any other defense except such as disproves plaintiff's cause of action."

The demurrer was upon the grounds: "1. Plaintiff demurs to defendant's said amendment of January 24, 1955, upon the ground that defendant not having filed any answer or plea to count three which was added to the petition in said case by an amendment duly allowed and filed on October 30, 1952, there is no pleading to said count three by which defendant can amend, and nothing to support said amendment by which defendant seeks for the first time to answer and plead to said count three. 2. Plaintiff demurs to paragraph 1 of said amendment upon the ground that the allegations therein contained merely constitute a plea of the general issue. 3. Plaintiff demurs to paragraph 2 of said amendment upon the ground that the allegations therein contained do not set forth or constitute any defense to plaintiff's cause of action set out in count three of said petition. 4. Plaintiff demurs to paragraph 2 of said amendment upon the ground that it being alleged in said count three that the tort therein described accompanying said purported levy on said property was committed by said constable upon the instructions of said defendant, and said defendant being thus charged with actual knowledge of and participating in same, the plea of estoppel sought to be set up in paragraph 2 of said amendment being equitable in nature, and not available to a wrongdoer with actual knowledge of the true facts, does not constitute a defense in behalf of defendant, either legal or equitable, to plaintiff's cause of action set out in count three."

Both the objections and the demurrer were overruled. The case proceeded to trial before the judge sitting by agreement of the parties as the sole trior of fact. It is not necessary to a clear understanding of the case dealt with in the opinion that the evidence adduced on that trial be set forth in detail here. All necessary references to the evidence are contained in the opinion.

The judge rendered a judgment in favor of the defendant. The plaintiff filed a motion for new trial. It was denied. To the judgment of the court overruling its objections and demurrer to the defendant's amendment allowed January 24, 1955, and to the judgment denying its motion for a new trial the plaintiff excepted.

FELTON, C. J.

1. Generally, when a petition is dismissed it carries the whole case, including the answer, out of court, provided no affirmative relief is sought in the answer. In the first instance, separate counts of a petition must be specifically and individually answered. In order for a party to amend a pleading there must be something to amend by. Notwithstanding all these propositions of law, where a third count is added to a petition by amendment, at a time when the first two counts and answers thereto were still in the case the elimination of the first two counts at a later date, together with the answers thereto, does not prevent an amendment to the answer adding the defense of estoppel to the presumptive denial of the allegations of the third count of the petition. At the time that count 3 was added by amendment, no answer to count 3 was necessary. It became the law of this case that "the allegations of count 3 are to be treated as having been simply denied." Henry Hutchinson v. Slack, 91 Ga. App. 353, 356 ( 85 S.E.2d 620). It has always been the law of this State that wherever the law presumes a simple denial of the allegations contained in a pleading, the law also presumes the right to amend at any stage of the cause although such denial was not in writing. In other words, an answer may be amended so long as the defendant is not in default. Barrett v. Pascoe, 90 Ga. 826 ( 17 S.E. 117). Prior to the pleading act of 1893, the law presumed an answer to a petition, although no answer was filed, where counsel for the defendant filed his name on the docket, and, such answer being presumed (though it was not in writing) it might be amended at any stage of the cause, and by the addition of any affirmative defense except those special pleas required to be filed within thirty days. Wall v. McNeil, 20 Ga. 239; Solomon Son v. Creech, 82 Ga. 445 ( 9 S.E. 165). In 1893, Code § 81-306 was added forbidding the filing of a plea of general issue to the petition, and from there on denials of the allegations of a petition were required to be in writing but the rule was unchanged that the defendant need not answer an amendment to the petition in order to gain the presumption of law that the allegations of the amendment are denied, so that the law as to answering amendments is the same now as formerly as to both petition and amendments — that is, when a defendant answers denying the allegations of a petition the law presumes a denial of allegations made by the plaintiff in an amendment to the petition and the defendant may amend at any stage of the cause with the exceptions hereinbefore noted. The answers to counts 1 and 2 were not stricken in the sense that they were out of the case as if they had never been filed. The fact that counts 1 and 2 had been answered inured to the benefit of the defendant in furnishing him an anchor to which a presumption of a denial of count 3 was attached. They were out of the case so far as counts 1 and 2 were concerned but were not out of the case, as above shown, as to count 3 and the defendant had a right to amend his answer by a plea not required to be filed in a special time limit, at any time before verdict. A plea of estoppel is an affirmative defense. Hughes v. Cobb, 195 Ga. 213, 231 ( 23 S.E.2d 701). An affirmative defense may be allowed by amendment at any stage of the cause. Case Threshing Machine Co. v. Donalson, 12 Ga. App. 121 (2) ( 76 S.E. 1049). Where the law presumes a denial of the plaintiff's allegations the law must also presume there is enough for the defendant to amend by. What the law regards as a pleading is a pleading regardless of whether the subject matter is in writing or not. The law does not require a piece of paper to effectuate its aims, intents and purposes. There can be an amendment by implication. Ga. R. Bkg. Co. v. Flynt, 89 Ga. App. 315 ( 79 S.E.2d 377); Mills v. Jones, 89 Ga. App. 502 ( 60 S.E.2d 59). See also Byrom v. Ringe, 83 Ga. App. 234 ( 63 S.E.2d 235).

2. The amendment was not filed too late. The general rule is that a pleading can be amended properly at any time before verdict. Code § 81-1312 provides: "An amendment to a petition, or plea, or answer, which materially changes the cause of action or defense, opens the petition, plea, or answer, as amended, to demurrer or plea. The opposite party shall be allowed a reasonable time for answering such amendment. An immaterial amendment shall not so open the petition or other pleading, and need not be answered at all, or shall be answered instanter." The expression in the above Code section to the effect that the opposite party shall be allowed a reasonable time for answering such amendment refers to a situation where the time for answering has expired and the filing of a material amendment gives the party a right to plead which he would not have otherwise had if no amendment had been filed. This would cover a case where the case was in default and the time for answering had expired and it would cover cases where the material amendment filed subjected the petition to special pleas, the time for the filing of which had expired. We do not think that the above Code section requires pleading to an amendment under any other circumstances than those just above cited. In view of what has been said in divisions 1 and 2, the court did not err in allowing the plea of estoppel as against the objection and demurrer that there was not enough to amend by or that the amendment was filed too late.

3. The plaintiff's objections and demurrer should have been sustained because the plea was without merit as a plea of estoppel. A plea of estoppel of the nature filed in this case operates only for the benefit of a bona fide purchaser without notice. Brown v. Tucker, 47 Ga. 485 (3). In his plea in the instant case the defendant did not allege that he was a bona fide purchaser without notice nor did he allege facts to show such, and in the absence of such an allegation, the plea was not a good plea of estoppel and was subject to demurrer. Groover v. Simmons, 163 Ga. 778 ( 137 S.E. 237); Carmichael v. Texas Co., 52 Ga. App. 751 ( 184 S.E. 397).

4. All of the proceedings subsequent to the allowance of the amendment were nugatory. The court erred in allowing the amendment setting forth an estoppel.

The case was considered by the court as a whole under the act of 1945.

Judgment reversed. Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur. Quillian, J., concurs specially.