Opinion
39096.
DECIDED SEPTEMBER 26, 1961.
Action on note. Sandersville City Court. Before Judge Evans.
Casey Thigpen, for plaintiff in error.
M. W. Dukes, contra.
1. An answer that makes some issuable defense is amendable.
2. Where the word "company" appears in a name it imports a corporation and its existence can be denied only by a proper plea of nul tiel corporation.
DECIDED SEPTEMBER 26, 1961.
Jones Motor Co. filed suit on a promissory note against Lillian Howard in the City Court of Sandersville, seeking to recover $493, principal, with interest thereon at eight percent from July 7, 1960, and the further sum of ten percent of the principal and interest as attorney's fees. It was alleged in the petition that a written notice to bind the defendant for the payment of the attorney's fees had been served on her more than ten days before the suit was instituted, as provided for in Code § 20-506, as amended. Defendant filed a general denial of all allegations in the petition except as to her residence in the county. Plaintiff demurred to the answer and moved to strike it, whereupon defendant offered an amendment to her answer in which it was alleged that the note sued on had been given for the purchase price of an automobile and that, by agreement between plaintiff and defendant, she had surrendered the car back to plaintiff in full satisfaction and discharge of the balance owing on the note. Plaintiff then amended the petition striking therefrom all reference to attorney's fees, objected to the allowance of the amendment, urging that there was not enough in the answer, as filed, to amend by, and insisted upon the demurrer to the answer.
Defendant moved to dismiss the petition on the ground that the plaintiff was "neither a natural or artificial person."
The court overruled the defendant's motion to dismiss the petition, sustained plaintiff's objection to the amendment, disallowing it, and sustained the demurrer to the answer on the ground that it presented no issuable defense since the prayer for attorney's fees had been stricken from the petition, and entered judgment against the defendant for the principal, interest and costs.
Defendant excepts to each of the rulings of the court and to the entry of the judgment against her.
1. If the petition had not sought the recovery of attorney's fees the answer in the nature of a general denial would have presented no issuable defense, and a demurrer or motion to strike would have been good. Johnson v. Cobb, 100 Ga. 139, 141 ( 28 S.E. 72); Thomas McCafferty v. Siesel, 2 Ga. App. 663 ( 58 S.E. 1131); McMillan v. Fourth Nat. Bank, 19 Ga. App. 445 ( 89 S.E. 635); Akers v. Decatur Street Bank, 16 Ga. App. 262 ( 85 S.E. 201); Richey v. Johnson, 21 Ga. App. 41 ( 93 S.E. 514); Bowden v. Davison-Paxon Co., 71 Ga. App. 379, 382 ( 31 S.E.2d 83).
However, since there was a prayer for the recovery of attorney's fees, a denial of the allegation that the defendant had been served with written notice to bind her for the payment thereof did present an issuable defense as to that, and the demurrer or motion to strike was not good. Dickson v. Saloshin, 54 Ga. 117; Walton v. William Hester Marble Co., 17 Ga. App. 75 ( 86 S.E. 279); DeLaigle v. Shuptrine, 21 Ga. App. 697 ( 94 S.E. 904); Tuxworth v. Barber, 21 Ga. App. 748 ( 94 S.E. 1042); Dawson Production Credit Assn. v. Connelly, 61 Ga. App. 889 ( 8 S.E.2d 424). Neither the act of 1953 (Ga. L. 1953, p. 545), amending Code § 20-506, nor Moore v. Trailmobile, Inc., 94 Ga. App. 892 ( 96 S.E.2d 529) in which the Code section, as amended, is construed to make the attorney's fees liquidated damages, requires a different conclusion. Under the Code section, as amended, the maker of the note must still be given notice of the holder's intention to enforce the provisions for payment thereof before he can be held. A general denial raises the factual issue as to whether such a notice was given.
And since defendant offered her amendment before plaintiff amended the petition striking therefrom all reference to attorney's fees, it should have been allowed, for there was at that stage "enough to amend by" in the answer. Code §§ 81-1301, 81-1302. While it is true that a petition that sets out no cause of action whatever, or an answer that sets up no legal defense whatever, is not amendable ( Davis v. Muscogee Mfg. Co., 106 Ga. 126, 32 S.E. 30; Richey v. Johnson, 21 Ga. App. 41, supra), yet where, as here, the answer does make some issuable defense, it may be amended. The right to amend, when it exists, is, as Justice Bleckley said in Murphy v. Peabody, 63 Ga. 522, 524, "as broad as the doctrine of universal salvation." Orr Stationery Co. v. Dr. Bell Lee Drug Co., 4 Ga. App. 702, 704 ( 62 S.E. 471). And see, Davis v. Muscogee Mfg. Co., 106 Ga. 126, 128, supra. The amendment here, timely offered, raised a defense involving factual matters to be resolved by a jury, and it was error to enter up judgment against the defendant. Cowart v. Bush, 142 Ga. 48 ( 82 S.E. 441).
2. The name of the plaintiff, "Jones Motor Company," imports a corporation. Charles v. Valdosta Foundry c. Co., 4 Ga. App. 733 ( 62 S.E. 493); Stephens v. Bibb Investment Co., 54 Ga. App. 321 ( 187 S.E. 709). The existence of the corporation can only be denied by a proper plea of nul tiel corporation. J. Ben Wilson Co. v. Sprague Mowing Machine Co., 55 Ga. 672; Bass v. African Methodist Episcopal Church, 155 Ga. 57 (9) ( 116 S.E. 816). There was no error in overruling defendant's motion to dismiss the petition.
Judgment reversed. Carlisle, P. J., and Nichols, J., concur.