White v. Brown

10 Ga. App. 530 | Ga. Ct. App. | 1912

Pottle, J.

A judgment absolute upon the forfeiture of a criminal recognizance was entered in the city court of Blakely against White as principal $md Harris as surety. At a subsequent term they filed a petition seeking to set aside the judgment absolute, upon several grounds mentioned in the petition. The petition did not in its body name any person as a party defendant, but did allege that the judgment sought to be vacated was against the plaintiffs and in favor of J. M. Brown, Governor. The plaintiffs prayed that process issue against the solicitor of the city court. The clerk annexed a process naming Hoke Smith, Governor, as defendant, and requiring him to appear and plead, and service was acknowledged by the solicitor, but no waiver of process was made. At the trial term the city-court solicitor entered a special appearance in behalf .of “J. M. Brown and his successor, Hoke Smith, Governor,” and moved the court to quash the process which had been issued by the clerk, requiring the Governor to appear and answer the petition. Thereupon the plaintiffs offered an amendment praying that process issue, directed to Hoke Smith, Governor, and striking the prayer for process against the city-court solicitor. The court refused to allow the amendment, and dismissed the petition; to all of which the plaintiffs excepted.

This was not an effort to amend a defective process. The process was in proper form. It is clear, however, that the city-court solicitor was the party defendant, since this must be determined by the prayer for process. In the body of the petition no other person was named as defendant, nor was anything therein disclosed to indicate an intention to proceed against any other person as defendant. Orr Shoe. Co. v. Kimbrough, 99 Ga. 143 (25 S. E. 204). The clerk was without authority to annex a process •calling upon Governor Smith to appear and answer, and such a process was properly treated as a nullity. Seisel v. Wells, 99 Ga. 159 (25 S. E. 266). The amendment offered sought to add a new . and distinct party, and was properly disallowed. The mere acknowledgment of service by the solicitor did not cure the defect. Seisel v. Wells, supra. The decision in Lyons v. Planters Bank, 86 Ga. 485 (12 S. E. 882, 12 L. R. A. 155), does not, upon its facts, conflict with what is now ruled. In that case there was no -prayer for process at all, and the persons named as defendants appeared and pleaded. This was a waiver of process and of a prayer therefor. It has never been held that a plaintiff can proceed directly against one person as defendant, and then, by amendment, convert the action into one against an entirely different person.

Judgment affirmed.