Opinion
36751.
DECIDED JULY 2, 1957.
Action to recover leased property. Before Judge Edwards. Elbert Superior Court. December 18, 1956.
J. T. Sisk, for plaintiff in error.
A. S. Skelton, Johnson Johnson, Marshall L. Allison, contra.
1. The trial court did not err in allowing the amendment to the plaintiff's petition over the defendant's objections.
2. The record does not disclose that the judgment of the trial court complained of in the motion for new trial, if error, was harmful.
DECIDED JULY 2, 1957.
This case was transferred to this court from the Supreme Court. See Scales v. Neal, 213 Ga. 181 ( 97 S.E.2d 689).
Milton Neal brought an action in the Superior Court of Elbert County to recover possession of certain described realty from O. P. Scales who it was alleged had leased it from the plaintiff. It was further alleged that the lease had been terminated on a certain date. Copies of the lease and the notice advising the defendant that the lease had been canceled were attached to the petition as originally filed. Thereafter the plaintiff amended his petition by striking certain paragraphs and by adding certain specific allegations of conduct showing that the defendant had breached the lease agreement. The defendant filed objections to the allowance of the amendment which were overruled. The jury returned a verdict for the plaintiff. The defendant's amended motion for new trial was denied, and it is to this judgment that he excepts as well as to the judgment overruling his objections to the allowance of the plaintiff's amendment.
1. The petition as originally filed, to which no objection was made according to the record before this court, alleged that the lease had been terminated on a certain date because it had been breached in certain respects by the defendant. The notice, allegedly given to the defendant, attached as an exhibit to the original petition states how, "among others," the lease agreement had been breached; and the amendment which was allowed over objection, merely elaborated on the violations of the lease agreement. The petition as originally filed sought possession of certain realty allegedly owned by the plaintiff because the defendant had allegedly breached his lease agreement. The petition, as amended, sought possession of this same realty because the defendant had allegedly breached this same lease agreement. No new cause of action was set forth in the amendment, and it was not subject to objections. Therefore, the trial court did not err in overruling these objections.
2. The defendant's motion for new trial was not accompanied by a brief of the evidence adduced on the trial of the case, and under the decision of this court in Gulick v. Mulcahy, 95 Ga. App. 158 ( 97 S.E.2d 362), and the cases cited therein, the judgment of the trial court denying the motion for new trial must be affirmed, for, although the ruling complained of in such amended motion for new trial may have been error, there is no way for this court to determine if such error was harmful.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.