St. Louis Lightning Rod Co. v. Johnson

18 Ga. App. 190 | Ga. Ct. App. | 1916

Bussell, C. J.

This was a suit upon a promissory note, brought by the St. Louis Lightning Bod Company against L. D. Johnson. The petition as originally filed commenced as follows: “ St. Louis Lightning Bod Co. v. L. D. Johnson. In the city court of Thomasville. June term, 1915. Georgia, Thomas county. To the honorable city court of Thomasville. The petition of the plaintiff as named in the caption, which is made a part hereof, respectfully shows: (1) That the defendant as above named is a resident of said county. (2) That the said defendant is indebted to your petitioner in the following sum/5 etc. The remaining paragraphs of the petition contain the usual and necessary allegations for a suit on a promissory note. The defendant demurred to the petition, alleging that it was fatally defective, in that it did not disclose with sufficient certainty a party plaintiff and a party defendant. The plaintiff thereupon offered an amendment to the caption of his petition, by adding the word “plaintiff55 after the name “St. Louis Lightning Eod Go./5 and the word “defendant55 after the name “L. D. Johnson.55 The defendant objected to the allowance of this proffered amendment, on the ground that the petition did not contain enough to amend by, and that the thing which the plaintiff sought to amend was not a part of the petition or of the “caption,55 as alleged in the amendment. The court refused the amendment, and sustained a general demurrer and dismissed the suit.

Under the foregoing statement of facts the questions which it is necessary to determine in this case are: (1) Did the following language constitute the caption of the petition: “St. Louis Lightning Eod Co. v. L. D. Johnson. In the city court of Thomasville. June term, 1915. Georgia, Thomas county/5 etc? (2) If this language did constitute the caption or title of the petition, was it a part thereof ? Unless the caption was a part of the petition, it was a nullity, since the proposed amendment was addressed to the caption only and would not have cured the defect. As to what the caption of a legal document includes, Black’s Law Dictionary contains the following: “The caption of a pleading, deposition, or other paper connected with a case in court is the heading or introductory clause which shows the name of the parties, name of the court, number of the docket or calendar,55 etc. It seems to be more or less generally recognized that a- petition must contain a title or caption (the terms being synonymous), and that the title or caption shall include the name of the court in which the case is to be tried, the county where the action is brought, and the name of the parties. See 6 Standard Bnc. Procedure, 645. The petition under consideration contained such a caption, setting forth the ñame of the parties, the court in which the suit was brought, etc. The question as to whether or not the caption was a part of the petition must be answered in the affirmative, since in the body of the petition the caption .is expressly referred to as such, and expressly -made a part thereof; and, so far as we have been able to discover, there is nothing in the Georgia law which prohibits a plaintiff from making a caption or title of a petition a part thereof by an appropriate allegation to that effect in the body of the petition. In 6 Standard Enc. Procedure, p. 645, it is said: “Except when made so by statute, the caption or title is no part of the pleading unless referred to by appropriate allegation in the body thereofJ (italics ours). The names of the parties to an action must appear either in the caption of the petition or in the body thereof, and when they appear in the caption it is not necessary to repeat the names in-the body of the complaint, but they may'subsequently be referred to merely as plaintiffs and defendants. See 31 Cyc. 96, and numerous cases there cited. In Chicago & E. R. Co. v. Thomas, 147 Ind. 35 (46 N. E. 73), it was held: “It would seem to be sufficient that the names of the parties should be correctly stated in the title of a cause, and that they need not thereafter be referred to in the several paragraphs of the complaint, except generally as plaintiffs and defendants.”

Erom what is above said, and especially in view of the fact that, as remarked by Judge Bleckley in Murphy v. Peabody, 63 Ga. 524, “the rule of amendment is as broad as the doctrine of universal salvation,” and that generally in this State amendments, if germane, are allowed as a matter of right, we feel constrained to hold that the trial court erred in disallowing the proffered amendment in this case, which would have cured a purely technical defect in the form of the petition. Judgment reversed.