State Farm Mutual Insurance v. Smith

170 S.E.2d 716, 120 Ga. App. 345, 1969 Ga. App. LEXIS 775

• Court: Court of Appeals of Georgia
• Decided: September 4, 1969
• Docket: 44446
• Status: Published

Opinions

Felton, Chief Judge.

The amendment in this case had one of two effects, depending upon whether the originally named party defendant, “State Farm Mutual Insurance Company,” is an existing corporation, authorized to do business in this State, or not, which fact the record does not show, (a) If it is not an existing corporation, the amendment merely corrected a misnomer in the description of the defendant served in the original petition (now complaint); (b) If it is an existing corporation, it substituted a new party defendant. We will now examine the results of both hypotheses.

If (a), above, was the situation, the amendment was properly allowed under pre-Civil Practice Act law. See Lowe v. Atlanta Coca-Cola &c. Co., 117 Ga. App. 135, 136 (159 SE2d 473) and cit. As was the situation in the Lowe case, there was no showing here that the corporation served with the original complaint, and which filed subsequent pleadings in the case in the name designated as the party defendant by the original petition, was not in fact the corporation designated by the amended complaint, which is a matter of affirmative defense and a question of fact.

The result is apparently the same under the provisions of the CPA, the effective date of which preceded the allowance of the amendment during the pendency of the action. Ga. L. 1966, pp. 609, 610; as amended, Ga. L. 1968, pp. 1104, 1105 (Code Ann. § 81A-104(h)) provides as follows: “At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.” Under the circumstances of the present case, it appears that the material prejudice would result to the plaintiff’s rights by the disallowance of the amendment, rather than to the defendant’s rights by its allowance. Misnomer is properly raised by a motion to dismiss. United States v. A. H. Fischer Lumber Co. (CCA 4), 162 F2d 872. The record in this case contains no such motion. In the absence of the affirmative defense that the defendant who appeared and pleaded to the petition was not the party which was in fact served with process, it is presumed that they are identical and that said pleader had the authority to represent the party defendant as designated in the amended complaint. This being so, no new summons was necessary to give the court jurisdiction, as in the case where new parties defendant are made by amendment, since the amendment here, under hypothesis (a), was solely for the purpose of correcting a misnomer. Bowles v. Marx Hide & Tallow Co. (DC-Ky), 4 FRD 297. There is authority for the proposition that the misnomer of the defendant in the summons is unamendable and a ground for dismissal. See Kerner v. Rackmill (DC-Pa), 111 FSupp 150; Sweeney v. Greenwood Index-Journal Co. (DC-SC), 37 FSupp 484. These cases, however, do not hold that the defendant can not waive such defect by appearing and pleading to the merits, as the present defendant has done. In fact, in Harris v. Stone, (DC-DC), 115 FSupp 531, the court approved of the practice of filing an amended complaint to cure the misnomer and, although it held that the amendment did not relate back to the filing of the original complaint so as to prevent the bar of the statute of limitation, it went on to observe that “of course if there are facts which would toll the running of the statute, or which would estop the defendants from asserting the bar of the statute of limitations the case would be different.” (Emphasis supplied.) The defendant here is estopped to assert the bar of the statute of limitation by its appearance and pleading to the merits in the name designated by the original petition as party defendant (which name it has continued to use thereafter in the trial court and in this court), without filing a motion to dismiss or an affirmative defense of lack of identity with the party served.

Under hypothesis (b), i. e., that the original misnomer is in fact the name of an existent corporation, whether or not connected with the litigation — “the substitution of another entity in place of the original one constitutes the addition of another party, a new defendant, and comes within the inhibition of Code § 81-1303.” Parker v. Kilgo, 109 Ga. App. 698, 702 (137 SE2d 333), citing McGowans v. Speed Oil Co., 94 Ga. App. 35 (93 SE2d 597). Assuming this to have been the situation, however, the defendant and appellant here shows no harmful error as to it, since the substitution of a new party defendant, distinct from the entity in whose name the defendant answered, pleaded and continues to plead, had the effect of releasing it from the case, which was a benefit, rather than harm to it.

The complaint as amended, showing State Farm Fire & Casualty Co. as the party defendant throughout, states a claim against the named defendant, whether under pre- or post-Civil Practice Act law. Therefore, the court did not err in its judgment overruling the renewed demurrer to the complaint as amended.

Judgment affirmed.

Bell, P. J., Jordan, P. J., Hall, Eberhardt, and Quillian, JJ., concur. Pannell, Deen and Whitman, JJ., dissent.