Lee v. Wade

121 S.E.2d 694, 104 Ga. App. 375, 1961 Ga. App. LEXIS 687

Opinion

Felton, Chief Judge.

“A prayer in a petition praying for process to issue requiring a defendant to answer at a time other than the time provided by law [Ga. L. 1946, pp. 761, 768; Code Ann. § 81-201] is defective and process issued thereon is subject to a motion to quash whether the process actually issued is in accordance with the law or in accordance with the prayer.” McCoy v. Romy Hammes Corporation, 99 Ga. App. 513(1) (109 SE2d 807). This defect in the plaintiff’s prayer for process was amendable (Malcom v. Knox, 81 Ga. App. 579, 59 SE2d 542), but since the prayer for process was not amended, and since the process itself was amended to conform with the requested invalid term process, the process remained voidable. As this defective process was not waived by the defendants, the trial court did not err in sustaining the defendants’ motions to quash the process and dismiss the plaintiff’s action.

Decided September 12, 1961. Lewis L. Scott, for plaintiff in error. Cam U. Young, Franklin, Barham & Coleman, contra.

Judgment affirmed.

Bell and Hall, JJ., concur.