Orr Stationery Co. v. Bell & Lee Drug Co.

4 Ga. App. 702 | Ga. Ct. App. | 1908

Hill, C. J.

(After stating the foregoing facts.)

The judgment of the court refusing to allow the amendment to the petition was erroneous. The suit was on an account which was a part of the petition, and this account clearly established the fact that the real plaintiff, and the intended plaintiff, was not the Orr “Shoe” Company, but the Orr “Stationery” Company,, and that the real and intended defendant was not the Dr. Bell & Lee “Shoe” Company, but was the Dr. Bell & Lee “Drug” Company. The use of the word “shoe,” therefore, .in the introductory-part of the petition was a manifest misnomer, — the unintentional adding ¿of a wrong word as a part of the names of both plaintiff' and defendant, and is equivalent to giving a wrong initial or-Christian name in pleading. This misnomer could have been properly corrected instanter, on motion of the plaintiff. The authority for this ruling is to be found in the Civil Code, §5102, which, in harmony with the practical purpose of legal investigation, sweeps-away all such technical quibbles in pleadings by declaring, that-“all misnomers, whether in the Christian name or surname, made-in writs, petitions, bills or other judicial proceedings on the civil side of the court, shall, on motion, be amended and corrected instanter, without working unnecessary delay to the party making the same.” The misnomer in the present case, when considered, in connection with the bill of particulars, was slight, and could not possibly have been misleading. Its correction by the plaintiff' could certainly do no harm to the defendant. The defendant knew who the real creditor was, if any, and it was unnecessary and unjust that the real creditor should have been delayed in the collection of his debt bj a misnomer which was patent to the debtor. It will be noted that the section of the code, supra, does not provide a remedy only for the instantaneous correction of slight misnomers in pleading, but declares that “all misnomers” in civil pleading are amendable; and in the case of Murphy v. Peabody, 63 Ga. 524, Justice Bleckley states that no case of misnomer is “too desperate to be healed.” “Certainly it is a wide miss to write-George Foster when the draftsman means Charles J., but such a blunder is only a misnomer, and the remedy is easy and instantaneous. The rule of amendment is as broad as the doctrine of universal salvation.” This liberal, practical, and common-sense enunciation of the great jurist has been uniformly followed by the-Supreme Court, and all such frivolous tactics of obstruction consigned to well-merited desuetude. Carey v. Cranston, 99 Ga. 77 (24 S. E. 869); Maddox v. Central Ry. Co., 110 Ga. 301 (34 S. E. 1036); Jarrett v. City Electric Ry. Co., 120 Ga. 472 (47 S. E. 927).

The foregoing ruling makes it unnecessary to pass upon any of the other assignments of error, or upon the motion to dismiss the writ of error, as all the other assignments and the motion to dismiss are based upon the assumed correctness of the judgment refusing to allow the amendment in question.

Judgment reversed.