dissenting. The plaintiff alleged that he had tendered a certain sum of money to the defendant insurance company, but did not give the date of such tender. On considering the demurrer to the petition the court passed the following order: "The above demurrer is hereby overruled, provided plaintiff, on or before August 1st, 1933, amends by setting out the date of the alleged tender. Upon his failure to do so the general demurrer is sustained.” The date of this order was July 10, 1933. On July 26, an attorney for the plaintiff mailed from his office in Atlanta an "amendment” to the presiding judge at LaGrange, Georgia, which he offered as a compliance with the judge’s order, and in reply received a letter from the .judge’s secretary stating that the judge would return "from his vacation” the first part of the next week, when the letter from plaintiffs’ counsel would be called to his attention. The judge, having returned to his office by July 31, 1933, allowed the amendment on that date and mailed the same to the attorney in Atlanta. It was not filed in the office of the clerk of the superior court of Coweta County until August 4, 1933. Subsequently the defendants moved to dismiss the case, on the ground that the petition was not amended in compliance with the terms of the order of the trial judge, because the amendment was not filed on or before August 1.
*61The sole question, for determination is whether or not failure to file, on or before August 1, 1933, the amendment which was allowed within time, required dismissal of the petition. It is true that a suit is not commenced until it has been duly filed in the office of the clerk, and also that a motion for a new trial is not “made” without filing; but an amendment is not an original proceeding, and the strict rule as to the filing of a petition, or of a motion for a new trial, would seem to be inapplicable. In this case we are dealing with an amendment, and not an original proceeding. To determine whether the petition was amended within the terms of the order necessitates an interpretation of the order itself, and this is the only matter for consideration. What did the judge apparently mean in stating that the demurrer is overruled, provided the plaintiff, on or before August 1, 1933, “amends” by setting out the date of the alleged tender? Upon a reasonable construction, it would seem that as concerns the question here under consideration the judge intended merely that the demurrer would be overruled if the amendment was offered and allowed, whether filed or not, within the time prescribed. In Branan v. Baxter, 122 Ga. 224 (supra) it was said that the offering of an amendment “is an application for it to be made a part of the record; and when the court denies the application, it is no part of the record and can not be filed as such.” The implication is that when an amendment is allowed it becomes a part of the record, provided it is filed within such time as may be necessary for its identification as a part of the record in the further progress of the case. It is not disputed that filing should ultimately follow the allowance of an amendment, but it is hardly reasonable to say that filing must follow instantly. If 'the court, instead of allowing time for the amendment, had ordered that if the plaintiff would then and there amend so as to give the date of the alleged tender the demurrer would be overruled, otherwise sustained, and if an amendment had been instantly offered and allowed, would it have been contended that the petition should nevertheless be dismissed because the amendment was not simultaneously filed in the office of the clerk of the superior court in the county in which the suit was pending, which was a different county from that in which the order was passed? Such a contention, if made, would doubtless have been swept aside as supertechnical and not consistent with the *62true intendment of the order. Here the amendment was tendered several days before the expiration of the time limit, but, without fault on the part of plaintiffs counsel, was not allowed by the trial judge until July 31. Under the circumstances shown, the plaintiffs counsel had no reasonable opportunity to have the amendment filed by August 1. In any view, it was filed in time when delivered to the clerk on August 4. The order passed in this case does not imply an intention to add filing as a condition precedent. When the proffered amendment was allowed on July 31, it was thereby made a part of the original petition, and the previous order was complied with. The filing was a distinct matter, constituting no part of the amendment itself, and contributing nothing to its nature as such. It is the order allowing it, not its deposit with the clerk, which engrafts it upon the petition, and the union is complete when the order is passed. The act of filing should, of course, follow for the purpose of identification and official keeping, but, unless otherwise ordered, it would be sufficient for the amendment to be filed within a reasonable time, depending upon the further progress of the case, as, for instance, the suing out of a bill of exceptions to review the judgment. It is respectfully submitted that none of the cases cited by the majority support the proposition that a petition is not amended until the proffered amendment is both allowed and filed.
According to common practice and understanding among the legal profession, an amendment becomes a part of the petition when it is allowed by an appropriate order by the trial judge, and this was the evident meaning of the order here in question. Whatever the judge may have intended in his own mind, the plaintiff acted upon the order in accordance with the natural import of the language used, and this court should not adopt the construction now placed upon it by the trial judge, as may be done where an order is susceptible to more than one interpretation. There was here no ambiguity, as in cases like Barnes v. Macon & Northern R. Co., 105 Ga. 495 and Brown v. Richards, 114 Ga. 318 (supra). It was said by Judge Russell in News Publishing Co. v. Lowe, 8 Ga. App. 333 (69 S. E. 128), that where the trial court allows an amendment to meet a defect pointed out by special demurrer, the petition should not be dismissed. Nothing whatever was said in regard to filing. In Strachan v. Wolfe, 2 Ga. App. 254 (58 S. E. 492), it *63was held by Judge Powell that a motion to reinstate is to be regarded as filed “when actually presented to the court for action, though the written entry of filing by the clerk is not made until a later date.” In McCaulla v. Murphy, 86 Ga. 475 (12 S. E. 655), it was held that when an “amendment was made and acted upon by the court and the parties, that was sufficient,” although the amendment had never been formally allowed by the court. In Latimer v. Irish-American Bank, 119 Ga. 887 (5) (47 S. E. 322), it was held not essential to the validity of a decree “that the answers of the defendants should have been marked filed by the clerk, the answers having in fact been in the hands of the court, and having been considered in making the decree.”
No case directly in point has been found, but cases relating to the filing of briefs of evidence in connection with motions for new trials are analogous and persuasive. Notwithstanding the rule that “the brief of evidence must be filed during the term” unless the time is extended by an order passed during the term (Verner v. Gann, 144 Ga. 843, supra), it has been held that an order approving a brief of evidence within the time allowed may prevent a dismissal of the motion, although the brief is not instantly filed. In Gould v. Johnston, 123 Ga. 765 (3) (supra), it was held: “Under an order passed in term, fixing a day in vacation for the hearing of a motion for a new trial, and granting leave to the movant 'to amend his motion and until the said day, and on said day, to amend and to perfect his brief of evidence in the case,' it is the right of the movant, on the day set for the hearing, to present for approval a brief of the evidence and to file the same after it has been perfected and approved by the court.” In Anderson v. Sapp, 135 Ga. 204 (3) (69 S. E. 181), it was held: “The approval by the judge of a brief of evidence, under an order allowing him to do so at the hearing of a motion for a new trial, and making provision for its subsequent filing, is the equivalent of an entry of filing upon the brief by the clerk.” In Central of Georgia Railway Co. v. Bell, 133 Ga. 92 (5) (supra), it was said: “A rule nisi directed that the brief of evidence might be filed within ten days after the motion for a new trial was heard and determined. Though the brief of evidence, which was approved by the court before the hearing of the motion and specified in the bill of exceptions as part of the record, and as such sent here by the clerk, *64was not filed within such ten days, and was filed after the bill of exceptions was filed, it will be considered by this court.” In Cobb v. Hall, 136 Ga. 254 (supra), it was said: “The approved brief of evidence which was considered on the hearing of the motion for a new trial constituted a part of the record in the case, although not filed after the hearing and judgment on the motion within the time prescribed by the judge’s order, but before the bill of exceptions was sued out.” See also Malsby v. Young, 104 Ga. 205; Martin v. Monroe, 107 Ga. 330; Mitchell v. Masury, 132 Ga. 360 (3) (supra).
There is no statute to the effect that an amendment must be filed before it may be considered as a part of the original pleading; and if the order in this case did not expressly or impliedly include filing as one of the conditions to be complied with, the petition should not have been dismissed merely because the amendment which was offered and duly allowed was not also filed within the time prescribed. Reasonably construed, the order did not include such a condition, and it was error to dismiss the petition as for a failure to comply therewith.
Mr. Chief Justice Russell concurs in this dissent.