This case came before the Court below on appeal from the Court of Ordinary of Screven county. It appears from the record that Willis Young, Sr., as the head of a family, applied for a homestead, which' was objected to by Brown & Company, his mortgage creditors, but was allowed by the Ordinary. An appeal was taken to the Superior Court, and on the trial of that appeal, the jury found that the applicant was not entitled to a homestead, as the head of a family, and judgment was entered upon that verdict. Afterwards, in January, 1871, the said Young again applied to the Ordinary for a homestead on the same land, which was allowed, and an appeal was again taken to the Superior Court. When the case was called in the Superior Court, Brown & Company, the appellants, moved the Court to dismiss the application for a homestead, on the ground that the right thereto was res adjucdicata. The applicant then moved the Court to amend his petition for homestead by inserting an additional ground for homestead, to-wit: a new right of homestead which had accrued since the former judgment, but which was not included in his petition to the Ordinary. The Court refused to allow the applicant to amend, and dismissed his application for homestead. Whereupon, the applicant excepted.
If the appellant relied on the former judgment as a bar to the second application he should have pleaded the same in bar, and then the question would have been made whether, under the evidence submitted, and the law applicable thereto, the former judgment was a bar to the second application. In our judgment, the applicant had the right to amend his petition in the Superior Court so as to shew such facts as would entitle him to a homestead as the head of a family, which did not exist at the time of the rendition of the former judgment. Whether the evidence of his new right to a homestead as the head of a family would have been sufficient, under the law, to relieve him from the bar of the former *555judgment, was the question to be tried, and about which we express no opionion; neither do we express any opinion as to the right of the applicant to have a homestead on the land as against the mortgage of Brown & Company. All that we do say is that he was entitled to be heard, and that the Court erred in dismissing his application without hearing the evidence in the case.
Let the judgment of the Court below be reversed.