*1 FINE FRANKLYN GESNER KETCHAM v. PAINTINGS, INC.

Sognier, in sale Ketcham, fraud claiming Ray sued Franklyn Gesner During Heade. by Martin Johnson painted allegedly art work of was not Gesner but purchaser apparent that discovery it became motion to dismiss Inc. Ketcham’s Paintings, Fine Franklyn Gesner the art work was purchaser of Gesner was not the upon learning that motion to substitute granted then a denied. The trial court Gesner as place Inc. in of Paintings, Gesner Fine and his the substitution Ketcham’s motion to strike trial court denied interlocutory ap- brings Ketcham renewed motion to dismiss. peal. for substitution authority appellee’s for motion purported (a) (Code provides:

was OCGA 9-11-17 party of the real “Every prosecuted the name action shall administrator, bailee, executor, a trustee guardian, An an interest. trust, or in whose name a contract express party with whom of another, or a has been made for the benefit of with joining action in his own name without bring statute and, when a brought; whose the action is him for benefit another shall be provides, an action for the use or benefit of statute dismissed on the the name of the state. No action shall be the real ground prosecuted it is not objection after interest until a reasonable time has been allowed or by, joinder or ratification of commencement of the action ratification, interest; of, party in and such substitution the real if action had shall have the same effect as joinder, substitution in the name of the real interest.” been commenced 81A-117) not in and of does it parties, nor does joinder itself authorize the substitution of may be joinder which substitution provide method merely postpones any It dismissal of the action accomplished. by allowing erring in interest prosecution by lack of the real by utilizing remedy time to its mistake reasonable statute. OCGA appropriate procedure provided the relevant (a) read as should thus be provide do parenthetically referring to those other statutes which procedures substituting parties. or for proper joining either for instead Appellee party by amending not original itself for the sought by its motion to substitute authorizing only statute Franklyn Gesner. (Code Ann. is OCGA substitution such involving which limits the use of substitution to instances party, in an incompetency the death or transfer of interest action, in public or the transfer of an action to a successor office. None of these four instances are to the situation here. Nelson v. Oil Sing *2 Supreme

Nor is the recent Court decision Block v. Life Voyager (303 742) (1983) Ins. Voyager 162 here. legal involved an action the name of a that was not a entity. Supreme party plaintiff Court held that where such a legal entity reasonably recognizable not a but is as a misnomer for a legal entity interest, which is the real the misnomer be by way contrast, of amendment. the instant action Gesner, brought by Franklyn entity legally distinct from Franklyn Gesner Fine Paintings, fully capable Inc. As an individual suing appellant in his own right, Gesner” cannot be seen “reasonably recognizable” corporate par- misnomer for the ty Furthermore, interest here. Voyager specifically looked to amendment correcting as means of appellant’s mistake and never addressed the use of substitution which faces our court in the instant case. states that “[p]arties dropped order of the court on any party motion of

or of any its own initiative at stage of the action and on such terms as just.” Appellee are procedure did not use this attempt and its to use parties substitution of instead was inappropriate and ineffective for statutory authority. want of supra. Baldwin, Nelson See Lamas Co. v. (1) 149, 150 (169 638) (1969); v. Eva Massengale Realtor, 757, 758 (1) Cook Where speaks a rule clearly and without ambiguity, this court will not ignore plain language Hence, before us. the trial court erred in granting appellee’s motion to substitute and in denying appellant’s motion to strike the substitution and dismiss the action against Franklyn Gesner. the striking party plaintiff, of the “substituted” Inc., Gesner Fine Paintings, and dismissal of the case by Franklyn instituted Gesner is not such a judgment on the merits as should bar corporate appellee bringing further action on claim for relief it against appellant. assert Shulman, Judgment J., Deen, J., Banke, reversed. C. P. Birdsong Carley, JJ, J., Quillian, J., concur. P. P. McMurray, J., and Pope, dissent. Decided December

Rehearing denied December III, Richard C. Gary Agnew, Freeman G. appellant. Caldwell, Jr., III, Harmon W. Wade H. Watson appellee. Presiding Judge, dissenting. Quillian, I respectfully dissent majority decision which holds that an action should be dismissed rather than the name of the The majority found this to be a “substitution” which generally by was authorized OCGA § specifically but not under OCGA as such the instant case is types not one of the included in the latter code section. do not find this distinction controlling. in Supreme Court, decided the issue of whether “pleadings may be

amended to substitute a when suit is filed legal entity.” They is not a held that “amendments name of a are the original party designation describes a firm or corporation. See Powell Tile & [Terrazzo] *3 “ Powell, 901).” SE2d In supra, longer Court held: ‘It is no issuable that under Georgia procedure the name of a plaintiff either or defendant so by be corrected prior amendment to judgment least, long, at as the by name which the originally designated party is imports person, firm, described corporation, though even it is ” fact not so.’ App. Thus, 125 Ga. at permitted we — plaintiff first described & “Ferguson Tile Terrazzo Co.” to H. Ferguson, “Robert Ferguson & Tile Terrazzo Co.” d/b/a instant case we are i.e., asked to do the opposite, permit to amendment of a plaintiff S. Gesner” to “Franklyn Gesner Fine Paintings, Inc.”

In Voyager Life Ins. Co. v. Estate of Frank G. Bagley, 165 Ga. SE2d this Court found that where the original action was in the name of “Estate of Bagley” Frank G. the proceedings nullity. were a The reversed holding: “The requires Civil Practice Act that a suit be filed by a real in interest but allows for amendment to substitute the real if incorrectly (Code interest named. OCGA 9-11-17 § 81A-117). (Code Ann. OCGA 9-11-15 Ann. provides for § § § liberal amendments and this is consistent with our holdings that the pleadings are not an end only themselves but a method to assist in merits of the case. McDonough Constr. Co. v.McLendon reaching Electrical 242 Ga. 510 SE2d shall courts construe the pleadings ‘as to do substantial justice.’ (f) (Code 81A-108).” Ann. It should be noted that this is not a case which a — defendant is changed whereby service proper party on the would inbe issue. This is an instance whereby person purchased paintings on behalf of corporation his from the defendant. The purchasing party was originally named as the plaintiff because he was the active — party participant though even corporation paid his the bill. The defendant And, was not misled or deceived. the amendment was petitioned by motion, as stated in majority opinion, and was by order of court after hearing. We should not “labels” in pleading from achieving justice.” “substantial See OCGA (f) (Code 81A-108). “It elementary rule of substance, pleading that nomenclature, not mere controls. Girtman Girtman, 173, 180 (4) (11 v. 191 Ga. 782); SE2d v. Chance Planters &c. Co-op., 1, 5 (131 541).” 219 Ga. State, McDonald v. 121); City of Tifton, accord: Evans v.

(6) (226 471); Smith, (2) (233 Goldstein v. 864). Thus, whether change in the name of plaintiff was a under OCGA 9-11-25 81A-125), or was authorized as an addition and deletion under OCGA or an “amendment[] name of a party original party [which is] designation person, (Powell firm corporation,” described] Tile & Terrazzo App. 683, supra), very clearly it was authorized under the much broader rule of supra, which holds “that where the plaintiff named in complaint is not a legal entity is reasonably recognizable as a misnomer entity for a legal par which is the real ty plaintiff, misnomer be corrected amendment.” original plaintiff in the instant case was a reasonably recognizable as a misnomer for the and the misnomer amendment. would hold that discretionary appeal was improvidently granted.

I am authorized to state that Presiding Judge McMurray and Judge Pope join in this dissent.

66248. DEPARTMENT OF TRANSPORTATION v. WRIGHT

et al.

Carley, 4, 1979, May On appellant Department Transportation (DOT) filed a proceeding pursuant rem OCGA seq. 32-3-4 et