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SMITH v. SMITH et al.
Adoption petition. Walker Superior Court. Before Judge Coker.
DEEN, Judge.
Where, after an order of adoption was reversed because of lack of proof of consent to the adoption by the presumed father the proposed adopting parents offered an amendment alleging that such consent had been obtained since the decision of the appellate court and setting out a copy thereof, the trial court did not err in overruling a motion to strike the amendment.
Mr. and Mrs. Earl Smith filed a petition for the adoption of two children of one Inge Dement Kole: Ellen Liana, born in California and presumably conceived at a time when the mother was married to Dement, and Evy Lynn, born in Germany over a year after she and Dement were divorced and before she married Kole. The petitioners' son, Earl Smith, Jr., filed objections to the adoption, claiming himself to be the natural father of both children. The trial judge found against the objector, and entered a final order of adoption granting the children to the petitioners. On appeal the Supreme Court affirmed the adoption of Evy Lynn, the German born child, but reversed as to Ellen Liana, the American born child, on the ground that Dement, not Smith, must be legally presumed to be her father and his consent to the adoption was not shown. See Smith v. Smith, 224 Ga. 442 (162 SE2d 379). After the remittitur from the Supreme Court was made the judgment of the trial court on August 13, 1968, the petitioners on September 10 amended by alleging the consent of the presumed father, Dement, to the adoption of Ellen Liana, thus offering to complete the proof which the Supreme Court had found to be lacking as to the adoption of this child. Smith, Jr., filed objections to the amendment on the ground that it came too late and that the judgment of August 13, 1968, terminated the case. The appeal is taken from the judgment overruling the motion to strike the amendment, properly certified under the provisions of Ga. L. 1965, pp. 1072, 1073, Sec. 1 (2).
Where a judgment in favor of one of two parties litigant is reversed by the appellate court without direction, and where only questions of fact, or mixed questions of law and fact are involved, the legal result is a new trial, not the rendition of a judgment without trial an as a matter of course. Schley v. Schofield & Son, 61 Ga. 528. This is true even though it does not appear form the record whether or not the losing party can adduce further evidence with which to meet the deficiency pointed out in the appellate opinion. Monroe Motor Express v. Jackson, 76 Ga. App. 280, 283 (45 SE2d 445). Where, on the other hand, only a question of law is involved, as where it is held that a petition fails to set out a cause of action for any relief, the losing party forfeits his right to amend after the judgment of the appellate court on remittitur is made the judgment of the trial court, since the case is no longer pending. Clements v. Hollingsworth, 206 Ga. 255, 256 (56 SE2d 505); Sammons v. Tingle, 216 Ga. 814 (1) (120 SE2d 124).
Under the Civil Practice Act, amendments properly filed relate back to the date of the original pleading, and the court may in a proper case allow amendments setting forth transactions occurring subsequent to the date of the pleading sought to be supplemented. Code Ann. 81A-115. We are concerned here only with a question of fact: if the child was born in wedlock the consent of the father was necessary to the adoption. Whether or not the child was legitimate was a fact in issue; the Supreme Court held that she was, and that therefore the consent of the father was a condition precedent. Upon this judgment being entered in the trial court the petitioners by amendment offered to supply written proof of such consent. No prior order of dismissal had been taken, the case was still pending at the time the amendment was offered, and the trial judge properly overruled the motion to strike under these circumstances.
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.
Frank M. Gleason, for appellees.
Irwin W. Stolz, Jr., for appellant.
Friday May 22 18:03 EDT

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