Opinion
41555.
SUBMITTED OCTOBER 6, 1965.
DECIDED FEBRUARY 23, 1966.
Action on attachment bond. Chattooga Superior Court. Before Judge Fariss.
Marson G. Dunaway, Jr., for plaintiff in error.
Robert Edward Surles, contra.
1. A substantial modification of a judgment on appeal entitles the winning party to a judgment for costs of bringing the case to the appellate court.
2. An affidavit attached to a proposed amendment, which was sworn to by defendant's attorney and which stated merely that the amendment was "not filed for the purpose of delay" was not in compliance with Code § 81-1310.
3. A party defendant cannot be added on application of an existing defendant in an action at law.
SUBMITTED OCTOBER 6, 1965 — DECIDED FEBRUARY 23, 1966.
This is the fourth appearance of this and related litigation before this court. See Lester v. Luttrell, 106 Ga. App. 574 ( 127 S.E.2d 817), where the attachment proceeding in which the surety bond was filed was held to be void and properly dismissed on a motion in arrest of judgment; U.S. Fidelity c. Co. v. Luttrell, 108 Ga. App. 606 ( 134 S.E.2d 77), where plaintiff's petition in this case was held to set forth a cause of action against the defendant surety upon the attachment bond; and U.S. Fidelity c. Co. v. Luttrell, 110 Ga. App. 325 ( 138 S.E.2d 457), where this court affirmed a summary judgment establishing the defendant surety's liability but leaving the issue of the amount of damages for trial. Since the latter decision of this court, trial of the case on the remaining issue resulted in a verdict for plaintiff for $686.46.
1. Plaintiff filed a motion in the trial court to set aside a portion of the court's order on remittitur taxing against plaintiff the costs of appeal in U.S. Fidelity c. Co. v. Luttrell, 108 Ga. App. 606, supra. After a hearing, the trial court, on June 22, 1964, entered an order which recited that defendant had not secured a substantial modification of the judgment appealed from and which modified the previous order by deleting the portion taxing costs of appeal against plaintiff. In the former case, the judgment of the trial court was affirmed in part and reversed in part. Plaintiff in error obtained a judgment of reversal of the trial court's order overruling special demurrers to allegations of the petition seeking to recover attorney's fees for prosecuting the suit against the surety. While this was not a complete reversal, it did amount to a substantial modification of the judgment of the trial court. Where, as here, the result of an appeal from a judgment on demurrers was the reduction of the recovery sought, or the reduction of elements of damages alleged, it cannot fairly be said that this result was not a substantial modification. It has been held many times that a judgment of reversal is not essential for the recovery of costs by the plaintiff in error; if he obtains a substantial modification of the judgment complained of, he is entitled to the costs of bringing the case to the appellate court. Hartley v. Hartley, 212 Ga. 62 (1) ( 90 S.E.2d 555) and citations.
The trial court erred in vacating the judgment for costs of appeal which had been entered as a part of its judgment on remittitur.
2. Plaintiff objected to defendant's amendment to its answer for failure to attach an affidavit in compliance with Code § 81-1310. "In the affidavit attached to the proposed amendment, the defendant did not swear that `at the time of filing the original plea or answer he did not omit the new facts or defense set out in the amended plea or answer for the purpose of delay,' but merely swore that the amendment was `not offered for delay.' The judge was not bound to allow the amendment, and it is clear that there was no abuse of discretion in disallowing it." Beacham v. Wrightsville c. R. Co., 125 Ga. 362, 368 ( 54 S.E. 157); Richardson v. DuPree, 32 Ga. App. 3 (1) ( 122 S.E. 707); Walker v. McMillen, 83 Ga. App. 257, 259 ( 63 S.E.2d 250). Moreover, the affidavit here failed in another respect, in that it was made by defendant's attorney at law, rather than by defendant through proper corporate authority. Royal Fraternal Union v. Hall, 134 Ga. 843 (1) ( 68 S.E. 728); Richardson v. Hairried, 202 Ga. 610, 614 ( 44 S.E.2d 237). Defendant's exception to the trial court's order disallowing the amendment shows no error.
3. A party defendant cannot be added on application of an existing defendant in an action at law. Code § 81-1303; Radcliffe Lamb v. Varner Ellington, 56 Ga. 222, 224; Waters v. Perkins, 65 Ga. 32, 34; Miles v. Wilson, 212 Ga. 60 ( 90 S.E.2d 568); Hamner v. Johnson, 100 Ga. App. 1, 3 ( 109 S.E.2d 881); Steerman v. Smith, 102 Ga. App. 809, 810 ( 118 S.E.2d 120). The trial court did not err in denying the defendant surety's application to make his principal a party defendant.
4. "According to the practice in this State, the failure of the plaintiff to support some of the allegations in his declaration by evidence, is no reason why the allegations should be stricken out on motion of counsel for the defendant." Georgia Hydratane Gas, Inc. v. White, 110 Ga. App. 826 (3) ( 140 S.E.2d 129); Andrews v. Andrews, 85 Ga. 276, 282 (1) ( 11 S.E. 771); Richmond c. R. Co. v. Worley, 92 Ga. 84, 87 (1) ( 18 S.E. 361). Defendant's exceptions to the denial of its motion to strike certain allegations in plaintiff's petition which defendant contended were not supported in the evidence are without merit.
5. Special grounds 1, 2, 3, 4, and 5 of the motion for new trial make various complaints against extracts from the charge of the court. The charge of the court is not in the record, and was not specified in the bill of exceptions as a necessary part of the record. Therefore, these grounds will not be considered. Bowman v. Bowman, 210 Ga. 259 (2) ( 78 S.E.2d 801); Otwell v. Forsyth County c. Assn., 210 Ga. 482, 488 (4) ( 80 S.E.2d 790).
6. Defendant's exceptions to the court's refusal to direct a verdict on certain issues are without merit. It is never error to refuse to direct a verdict. E.g., Guest v. Baldwin, 104 Ga. App. 809, 811 ( 123 S.E.2d 194).
7. The general grounds of the motion for new trial, not having been argued either by brief or orally, are treated as abandoned. Savannah News-Press v. Hartridge, 110 Ga. App. 203, 205 ( 138 S.E.2d 173).
The error discussed in Division 1 of the opinion will not require a new trial. The trial court is directed to enter judgment taxing against plaintiff the costs of the previous appeal decided in U.S. Fidelity c. Co. v. Luttrell, 108 Ga. App. 606, supra.
Judgment affirmed on all other grounds. Frankum and Hall, JJ., concur.