O.C.G.A. § 9-10-158 (2019)

Annotations

JUDICIAL DECISIONS Section is mandatory. - The requirement of this section, that the opposite party must, personally or by counsel, state that the party is surprised and less prepared for trial by the amendment, is mandatory. Haines v. Currey, 36 Ga. 602, 1867 Ga. LEXIS 103 (1867); Peters v. West, 70 Ga. 343, 1883 Ga. LEXIS 335 (1883); Ledbetter v. McWilliams, 90 Ga. 43, 15 S.E. 634, 1892 Ga. LEXIS 119 (1892); Craddock v. Kelley, 129 Ga. 818, 60 S.E. 193, 1908 Ga. LEXIS 202 (1908); Hill v. Harris, 11 Ga. App. 358, 75 S.E. 518, 1912 Ga. App. LEXIS 404 (1912) (see O.C.G.A. § 9-10-158). Error as to denial of continuance without merit where party unharmed. - Where the defendant enumerates as error the denial of the defendant’s motion for continuance on the ground that the defendant is unprepared to defend a claim contained in an amendment to the complaint, but the defendant cannot show any harm the defendant suffered from the denial of the defendant’s motion since the jury found for the defendant on the issue, the enumerated error is without merit. McFarland v. Hodge Homebuilders, Inc., 168 Ga. App. 733, 309

S.E.2d 853, 1983 Ga. App. LEXIS 2908 (1983). Express statement that surprise not for purpose of delay required. - It is an indispensable requisite of the motion under this section that the movant, or the movant’s attorney, make an oath that the claim or surprise is not for the purpose of delay; this matter is not left to inference, but must be an express statement. Georgia Life Ins. v. Hanvey, 143 Ga. 786, 85 S.E. 1036, 1915 Ga. LEXIS 617 (1915); Camp & Camp v. Interstate Chem. Co., 18 Ga. App. 416, 89 S.E. 491, 1916 Ga. App. LEXIS 381 (1916); Hoffman v. Franklin Motor Car Co., 32 Ga. App. 229, 122 S.E. 896, 1924 Ga. App. LEXIS 344 (1924); Potts v. Wilson, 158 Ga. 316, 123 S.E. 294, 1924 Ga. LEXIS 145 (1924) (see O.C.G.A. § 9-10-158). Motion defective absent express representation that surprise not for purpose of delay. - A motion for a continuance upon the ground of surprise, made upon the allowance of an amendment to the petition, is defective where it is not at the time expressly represented to the court that such surprise is “not claimed for the purpose of delay.” William-

son v. Gentry, 44 Ga. App. 596, 162 S.E. 395, 1932 Ga. App. LEXIS 411 (1932). Denial of motion absent express statement not reversible. - There must be an express statement to the effect that delay is not the purpose of the application; and, in the absence of such express statement, a judgment refusing to continue the case will not be reversed. Abdill v. Barden, 221 Ga. 591, 146 S.E.2d 299, 1965 Ga. LEXIS 538 (1965). Defendant’s motion properly denied where surprise unsupported by circumstances. - Where action had been instituted by the plaintiff manufacturing company long before it was adjudicated a bankrupt, the defendant must necessarily have had knowledge that the company claimed title to the account sued on, and there had been ample opportunity to obtain proof to the contrary, the judge did not abuse the judge’s discretion in refusing a continuance on account of the plaintiff’s amendment, allowed without objection, by reason of which the defendant claimed surprise. Manry v. Williams Mfg. Co., 45 Ga. App. 833, 166 S.E. 222, 1932 Ga. App. LEXIS 726 (1932). In motion for new trial ground excepting to refusal of continuance insufficient. - In a motion for new trial, if a ground excepting to the refusal of a continuance fails to show that surprise was not claimed for the purpose of delay, or how and wherein the movant was less prepared to go on with the trial, the ground is insufficient. Jones Mercantile Co. v. Copeland, 54 Ga. App. 647, 188 S.E. 586, 1936 Ga. App. LEXIS 721 (1936). Continuance properly denied where movant had sufficient notice of amendment. - Copy of an amendment having been served upon the defendant’s counsel in December 1889, but the original not having been filed until October 27, 1890, and the trial occurring on October 30, 1890, it was no abuse of discretion to overrule a motion for continuance. Southern Bell Tel. & Tel. Co. v. Jordan, 87 Ga. 69, 13 S.E. 202, 1891 Ga. LEXIS 95 (1891). Court’s discretion not abused where opposite parties had three weeks’ notice of facts in amendment. - Under the express provision of this

section, on application of a party pleading surprise upon the filing of an amendment, the granting or refusing of such continuance is within the discretion of the court and this discretion is not abused where the opposite parties had approximately three weeks’ notice of the facts set forth in the amendment. Central Truckaway Sys. v. Harrigan, 79 Ga. App. 117, 53 S.E.2d 186, 1949 Ga. App. LEXIS 598 (1949) (see O.C.G.A. § 9-10-158). Continuance properly refused where movant’s witness is nonresident with unknown address. - Party does not meet the requirements of the law in the party’s motion for a continuance where the witness is a nonresident of the county having jurisdiction of the case and the witness’s address is unknown, and the court does not abuse its discretion in refusing the continuance. Griffin v. State, 85 Ga. App. 602, 69 S.E.2d 665, 1952 Ga. App. LEXIS 793 (1952). Refusal to grant short continuance proper absent compliance with section. - Where plaintiff amended the plaintiff’s petition materially and defendant stated that the defendant was surprised by the amendment and moved that the trial be halted until the afternoon session of the court, refusal to grant a continuance should not be reversed in light of the statutory requirement that the movant make an oath, or that the movant’s counsel state in the movant’s place, that such surprise is not claimed for the purpose of delay. Gregory v. Ross, 214 Ga. 306, 104 S.E.2d 452, 1958 Ga. LEXIS 408 (1958). Motion for continuance, not to dismiss, proper for party surprised by amendment. - That a party is surprised, or less ready for trial, by reason of an amendment is not cause for demurrer (now motion to dismiss) thereto, the party should move for a continuance under this section. Wells v. Wells, 118 Ga. 812, 45 S.E. 669, 1903 Ga. LEXIS 722 (1903) (see O.C.G.A. § 9-10-158).

RESEARCH REFERENCES Am. Jur. 2d. 17 Am. Jur. 2d, Continuance, §§ 10 et seq., 80 et seq. C.J.S. 17 C.J.S., Continuances, § 31. ALR. Refusal of continuance in criminal trial, asked for on account of occurrences during trial, as abuse of discretion, 5 A.L.R. 914.

Party litigant’s absence in civil case because of illness of relative or member of family, as ground for continuance, 47 A.L.R.2d 1058. Amendment of pleading before trial with respect to amount or nature of relief sought as ground for continuance, 56 A.L.R.2d 650.