Cunningham, Tallman, Pennington, Inc. v. Case-Hoyte Color Printers

Court of Appeals of Georgia

Cunningham, Tallman, Pennington, Inc. v. Case-Hoyte Color Printers

330 S.E.2d 598, 174 Ga. App. 488, 1985 Ga. App. LEXIS 1852

CourtCourt of Appeals of Georgia

DecidedApril 3, 1985

Docket70008

StatusPublished

Cited by6 cases

This text of 330 S.E.2d 598 (Cunningham, Tallman, Pennington, Inc. v. Case-Hoyte Color Printers) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cunningham, Tallman, Pennington, Inc. v. Case-Hoyte Color Printers, 330 S.E.2d 598, 174 Ga. App. 488, 1985 Ga. App. LEXIS 1852 (Ga. Ct. App. 1985).

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Opinion

Banke, Chief Judge.

The appellant, Cunningham, Tallman, Pennington, Inc., brought suit against “Case-Hoyte Color Printers” for breach of contract. “Case-Hoyt Atlanta Corporation” filed an answer and moved to dismiss the complaint on the basis that “Case-Hoyte Color Printers” was neither a legal entity nor a trade name for “Case-Hoyt Atlanta Corporation.” Thereafter, appellant moved to amend its complaint by substituting “Case-Hoyt Atlanta Corporation” for “Case-Hoyte Color Printers” as the named defendant. This appeal is from an order denying the motion to amend and granting the motion to dismiss. Held:

“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. [Cits.] Correction of a misnomer involves no substitution of parties and does not add a new and distinct party. [Cit.]” Atlanta Veterans Transp. v. Westmoreland, 123 Ga. App. 466 (181 SE2d 504) (1971). See also Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537 (314 SE2d 903) (1984); Block v. Voyager Life Ins. Co., 251 Ga. 162 (1) (303 SE2d 742) (1983); London Iron &c. Co. v. Logan, 133 Ga. App. 692 (2) (212 SE2d 21) (1975). Accordingly, the trial court erred in denying appellant’s motion to amend and in granting appellee’s motion to dismiss.

Judgment reversed.

McMurray, P. J., and Benham, J., concur.

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Banke, Chief Judge.

The appellant, Cunningham, Tallman, Pennington, Inc., brought suit against “Case-Hoyte Color Printers” for breach of contract. “Case-Hoyt Atlanta Corporation” filed an answer and moved to dismiss the complaint on the basis that “Case-Hoyte Color Printers” was neither a legal entity nor a trade name for “Case-Hoyt Atlanta Corporation.” Thereafter, appellant moved to amend its complaint by substituting “Case-Hoyt Atlanta Corporation” for “Case-Hoyte Color Printers” as the named defendant. This appeal is from an order denying the motion to amend and granting the motion to dismiss. Held:

“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. [Cits.] Correction of a misnomer involves no substitution of parties and does not add a new and distinct party. [Cit.]” Atlanta Veterans Transp. v. Westmoreland, 123 Ga. App. 466 (181 SE2d 504) (1971). See also Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537 (314 SE2d 903) (1984); Block v. Voyager Life Ins. Co., 251 Ga. 162 (1) (303 SE2d 742) (1983); London Iron &c. Co. v. Logan, 133 Ga. App. 692 (2) (212 SE2d 21) (1975). Accordingly, the trial court erred in denying appellant’s motion to amend and in granting appellee’s motion to dismiss.

Judgment reversed.

McMurray, P. J., and Benham, J., concur.

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330 S.E.2d 598, 174 Ga. App. 488, 1985 Ga. App. LEXIS 1852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-tallman-pennington-inc-v-case-hoyte-color-printers-gactapp-1985.

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