115 Ga. 959 | Ga. | 1902
The Neal-Millard Company filed, in the office of the clerk of the superior court of Chatham county, a petition against Hampton J. Herb and Mrs. Mary H. Owens. The process annexed to the petition stated the case as “Neal-Millard Company vs. Hampton J. Herb and Ed. L. Prince ”; and in the body of the process “the defendants, Hampton J. Herb and Ed. L. Prince,” were required to appear at the next term of the court to answer the plaintiff’s petition. The process was dated August 13, 1901. On the back of the petition the case was stated as the “Neal-Millard Com
The Code provides that “No technical or formal objections shall invalidate any petition or process, but if the same substantially conforms to the requisitions of this Code, and the defendant has had notice of the pendency of the cause, all other objections shall be disregarded.” Civil Code, § 4994. It is also provided that “ The mistake or misprision of a clerk or other ministerial officer shall in no case work to the injury of a party, where by amendment justice may be promoted.” Civil Code, §5125. The Code contains the further provision that “Void process, or where there is no process or waiver thereof, can not be amended, but if service be acknowledged by the defendant, and, upon hearing testimony, the court hecomes satisfied that process was waived by the defendant, and that, at the time such service was acknowledged, by accident or mistake the entry of such waiver was omitted, such omission may he supplied by amendment nunc pro tunc.” Civil Code, § 5109. There is no evidence of a waiver of process by Mrs. Owens; and therefore the question to be determined is, whether the process served upon her was void for the reason that, although she was named in the petition as one of the defendants to the suit, her name did not appear anywhere in the process annexed thereto,but the same contained the names of one of the persons named in the petition as defendants and of another person who had no connection with the case. This is the only question to be determined; for it will be conceded that a void process is not amendable, and that a mere irregularity in a process can be cured by amendment.
In Richmond & Danville Railroad Co. v. Benson, 86 Ga. 203, it was held that where the declaration prayed for process requiring the defendant to appear at the August term of the court, that being "the next regular term, and the process attached by the clerk commanded the defendant to appear at the next term to be held “ on the first Monday in July,” and the defendant by counsel'appeared at the August term and moved to dismiss the case because the process was void, the court, having jurisdiction of the case, could allow the process to be amended. The erroneous statement of the date in the process was held to be such a technical or formal defect as could be cured by amendment. The process referred to in that case was clearly not void, it containing all of the requirements of a valid process. The defendant was chargeable with knowledge of the law which fixed the time for holding the next regular term of the court in August, and therefore he must have known that the date stated in the process was a clerical error. Knowing this, it was his duty to disregard the date named in the process. This was the theory upon which that case was decided, and there is nothing in the facts of the case to make the decision controlling in the present case. In Scudder v. Massengill, 88 Ga. 245, it was ruled that process annexed to a declaration is not void because in stating the case it misdescribes it by inserting a name as plaintiff different
Judgment affirmed.