37 Ga. App. 24 | Ga. Ct. App. | 1927
The record in this case shows that on October 28, 1926, A. C. Wade filed, to the December term, 1926, of the city court of Richmond county, a petition against the Georgia Motors Company Inc., to recover on a claim arising out of the sale to him of an automobile which he alleged proved worthless for his use; that process was directed to the Georgia Motors Company Inc., and the petition and process were served “personally upon B. P. Mays, secretary and treasurer of said company;” that the case was marked “in default,” and when the case was called for trial at the February term, 1927, of said court.the plaintiff testified to the facts stated in his petition and the court directed a verdict in his favor. The verdict was in favor of the plaintiff, but it did not name the defendant. On February 24 a judgment was entered against “the defendant, the Georgia Motors Inc.” On February 25 an execution was issued which followed the verdict. On February 28 “The Georgia Motor Sales Inc.” filed a motion to set aside the judgment, and among other things alleged that the petition was brought against and the process issued in the name of “Georgia Motors Inc.,” and was served upon “Georgia Motor Sales Inc.” The motion further alleged that the “true name of the corporation upon which the petition and process was served is Georgia Motor Sales Inc.;” that “the Georgia Motor Sales Inc. did not acknowledge service on said petition, did not waive process, did not appear and plead or file any defense to the action brought against Georgia Motors Inc.” To the motion to set aside the judgment Wade filed a demurrer, and a sworn answer in which he alleged that “the true defendant was served, and was required under the law to make answer if it desired to contest the suit.” The attorneys for the defendant were allowed to withdraw its motion. Thereafter Wade filed a verified motion to amend the petition, the verdict, the judgment and the fi. fa. On March 14, 1927, Georgia Motor Sales Inc. filed objections to the motion to amend, and.on March 28, 1927, the judge passed an order sustaining the motion to amend. To this order Georgia Motor Sales Inc. excepted.
The plaintiff’s motion to amend contains the following prayers: “That he be allowed to correct the misnomer by designating the defendant as the c Georgia Motor Salese,Inc.,’ instead of the ' Gcor
In Southern Mutual Ins. Co. v. Turnley, 100 Ga. 297 (27 S. E. 975), the 7th headnote is as follows: “It is too late to amend a declaration after a judgment thereon has been rendered, and a motion for a new trial is pending.” In the opinion in that case Chief Justice Simmons said: “After verdict and judgment, and pending the motion for new trial, the court, over objection by the defendant, permitted the plaintiffs to amend their declaration by alleging that the defendant had waived certain stipulations of the policy. There must be some limit as to the time of amendment; and although our law is quite liberal on this subject, the code providing that amendments may be made ‘at any stage of the cause'' (Civil Code, § 5097), we do not think that this means that they may be made after the case has been tried and a judgment rendered therein which has not been set aside or vacated.” (Italics ours.) The case from which we have just quoted is cited with approval in City of Columbus v. Anglin, 120 Ga. 789 (3, 4, 5) (48 S. E. 318). In Hyer v. Holmes, 12 Ga. App. 848 (5) (79 S. E. 63), Chief Judge Russell said: “One of the amendments, to the allowance of which exception is taken, was presented after the conclusion of the evidence and argument. The amendment appears to be pertinent to the evidence and germane to the issue. It is well settled that an amendment which meets these requirements is permissible at any stage of the case prior to the rendition of the verdict.” (Italics ours.) In discussing what is now § 5681 of the Code of 1910, Mr. Justice Simmons, in Savannah, Fla. &c. Ry. Co. v. Watson, 86 Ga. 796 (13 S. E. 156), said: “Under this section, we think the court erred in refusing to allow the
The foregoing decisions seem to settle the proposition that a proper amendment to the petition can be made at any time before judgment but not after, and that the court erred in allowing the petition to be amended after verdict in the instant case. In the absence of an amendment to the petition, can the verdict and judgment be amended so as to change the name of the defendant therein from “Georgia Motors Company Inc.” to “Georgia Motor Sales Inc. ?” We think not. The effect of such an amendment would be to destroy the conformity between the petition and process and the verdict and judgment. The petition names as the defendant “Georgia Motors Company Inc.,” the process was directed to the “Georgia Motors Company Inc.,” and service was perfected on • “the defendant, the Georgia Motors Co. Inc.” The letters “Inc.” show that the defendant was an incorporated concern. In Bradford v. Water Lot Co., 58 Ga. 282, Judge Jackson said: “The execution must follow the judgment; the judgment is against the Water Lot Co. of the City of Columbus; the execution is against
In Thompson v. American Mortgage Co., 122 Ga. 39 (49 S. E. 751), the headnote is as follows: “Where a petition was filed and process issued against A, and the return of the sheriff shows that he served 'the defendant,5 and where, in entire conformity to the pleadings, judgment by default was entered against A, such judgment can not, on the ground that its rendition against A was the result of a clerical error, be so amended as to make it a valid judgment against B, there being apparent on the face of the record no evidence of any clerical error or inadvertence. This is so though B admits that he was the party who owed the debt sued for and should have been made the defendant in the suit, and informally consents that the judgment be so amended as to apply against him.55 In discussing that case Mr. Justice Candler said: “The petition was against Mary Coley, the process was against Mary Coley, and the return of the sheriff showed that 'the defendant5 was served. If the declaration and process had been against Caroline Coley, and the judgment against Mary, then the error would have been amendable if made in the proper manner. Or if the suit had been against Caroline, and the process and judgment against Mary, the error could have been cured by amendment. But the declaration, process, and judgment were -all against Mary Coley, and execution issued against Mary Coley. There could have been no clerical error or inadvertence on the part of any officer of court. Everything done, both by the clerk and the sheriff, was in conformity to the plaintiff’s pleadings, and the judgment rendered was also in conformity thereto. The subsequent order of the court did not seek to amend anything except the judgment rendered, and its effect was to destroy the conformity between the judgment and the pleadings and process. In other words, taking the record as now presented
Judgment reversed.