Atlanta Veterans Transportation, Inc. v. Westmoreland

181 S.E.2d 504, 123 Ga. App. 466, 1971 Ga. App. LEXIS 1265

• Court: Court of Appeals of Georgia
• Decided: March 16, 1971
• Docket: 45818
• Status: Published

Opinion

Hall, Presiding Judge.

Defendant in two actions for damages appeals from the dismissal of a motion to strike its name as a defendant.

The plaintiffs filed their original actions designating as a party defendant "Veteran’s Checker Cab Co. of Atlanta,” and listing a certain address as the principal place of business. A copy of the summons and complaint was served upon the office manager at that address, and defendant has stipulated that had it been designated by its proper corporate name, the service would have been good. The plaintiffs later amended their complaints to designate the corporate defendant as "Atlanta Veterans Transportation, Inc. d/b/a Atlanta Veterans Cab Co. and Veterans Checker Cab,” with the same address as that of the original complaint. Following the amendment, defendant received and answered interrogatories in the correct name and only later made its motion to strike.

Where the real defendant has been properly served, a plaintiff has the right to amend in order to correct a misnomer in the description of the defendant contained in the complaint. Lowe v. Atlanta Coca-Cola Bottling Co., 117 Ga. App. 135 (159 SE2d 473); Parker v. Kilgo, 109 Ga. App. 698, 701 (137 SE2d 333); Smith v. Hartrampf, 106 Ga. App. 603 (127 SE2d 814). Correction of a misnomer involves no substitution of parties and does not add a new and distinct party. Moody A. F. B. Fed. Credit Union v. Kinard, 116 Ga. App. 163, 164 (156 SE2d 526). Persons, not their names, are sued. Black v. Jacobs, 113 Ga. App. 598 (149 SE2d 190). The appellants contend that the above decisions are inapplicable under the C. P. A. On the contrary, they have been expressly incorporated therein. "A party whose name is not known may be designated by any name, and when his true name is discovered, the pleadings may be amended accordingly.” Code Ann. § 81A-110 (a).

Argued January 11, 1971 Decided March 16, 1971. Harris Bullock, for appellant. Heyman & Sizemore, William H. Major, Gerald M. Edenfield, John R. Harvey, Allen, Edenfield, Brown & Franklin, B. Avant Edenfield, for appellees.

The trial court did not err in overruling appellant’s motion to dismiss.

Judgment affirmed.

Eberhardt and Whitman, JJ., concur.