Opinion
39599.
DECIDED SEPTEMBER 6, 1962. REHEARING DENIED SEPTEMBER 24, 1962.
Claim, etc. Fulton Civil Court. Before Judge Parker.
William B. Jones, for plaintiff in error.
Curtis M. Cook, Eugene S. Taylor, contra.
A return of service may be amended to show that a person actually served was served in a different capacity than was shown in the original return.
DECIDED SEPTEMBER 6, 1962 — REHEARING DENIED SEPTEMBER 24, 1962.
The original summons of garnishment in this case was directed to Smith Hardware Company and the return showed service on "Smith Hardware Co. by serving the same on Mr. Smith its agent." After a recovery by plaintiff Hartrampf, claimant Frank Smith was granted a new trial in this court because the plaintiff had failed to carry the burden of showing that the property levied on was owned by the defendant garnishee Smith Hardware Co. Smith v. Hartrampf, 105 Ga. App. 40 ( 123 S.E.2d 417). Subsequently, the return of the original summons of garnishment was amended to show service on "Smith Hardware Co. by serving the same on Mr. Smith owner personally." The trial proceeded before the court without a jury and resulted in a recovery by plaintiff. The claimant Smith complains of the overruling of his motion for new trial on both general and special grounds.
The failure of the plaintiff to amend is one of the reasons a new trial was granted, the court saying: "However, there was no amendment, the garnishment was not served on an individual, and the judgment and execution were not in the proven trade name of the claimant." Smith v. Hartrampf, 105 Ga. App. 40, supra, at 43.
The controlling issue in the case is whether or not the process was amendable. According to Code § 81-1313, a void process may not be amended. But "every court has power . . . to amend and control its processes and orders, so as to make them conformable to law and justice; and to amend its own records, so as to make them conform to the truth." Code § 24-104 (6). The question resolves itself to whether or not a return of process may be amended to show service on the same person in some other capacity.
Generally, our courts have been quite liberal on the subject of defects in process and the return of process for "It is the fact of service, and not the return made by the officer, which gives the court jurisdiction of a party." Southern Exp. Co. v. National Bank of Tifton, 4 Ga. App. 399, 401 ( 61 S.E. 857); Clements v. Sims T-V, Inc., 105 Ga. App. 769, 773 ( 125 S.E.2d 705); Klosenski v. Flaherty (Fla.) 116 So.2d 767, 82 ALR2d 664. It has been said that the power to amend process is as broad as that allowed for other pleadings. McGhee v. Mayor c. of Gainesville, 78 Ga. 790, 792 ( 3 S.E. 670); Everett v. McCary, 93 Ga. App. 474 ( 92 S.E.2d 112).
The purpose of process it to give the defendant notice of the suit and to give the court jurisdiction. Leverett, Hall Christopher, Ga. Procedure Practice, § 3-6 (1957). Here Frank Smith admitted that he was served with the process. The defective return of a valid service of process may be amended to speak the truth. Southern Bell Tel. c. Co. v. Jackson, 102 Ga. App. 699 (1) ( 117 S.E.2d 550). In fact, our courts have gone so far as to say that "Any amendment of the return which makes it speak the truth can be made; and when so amended, it relates back to the date of service, and is to be considered the initial return." (Emphasis added). Southern Exp. Co. v. National Bank of Tifton, 4 Ga. App. 399, supra, at (3). See Jones v. Bibb Brick Co., 120 Ga. 321 ( 48 S.E. 25).
And amendments changing descriptions have been allowed. In Mayer Lowenstein v. Chattahoochee Nat. Bank, 46 Ga. 606, the return of personal service on one Epping of a summons of garnishment was held amendable to show that Epping was served in his capacity as president of the garnishee bank. Bell v. Ayers, 82 Ga. App. 92 ( 60 S.E.2d 523) presented a situation where the original return showed service on "Coca-Cola Bottling Company, a foreign corporation." The sheriff was allowed to amend his return, after an amendment to the petition, to show service on "the Coca-Cola Bottling Company, the defendant by serving [Bell] one of the partners, personally."
Claimant urges that Gibbs v. Rhodes Furniture Co., 58 Ga. App. 352 ( 198 S.E. 315) is controlling. There the court stated that the rule preventing the amendment of a return of process to show service on some other person prevented an amendment of the return to show service on an individual of a summons of garnishment directed to a corporation and served on its agent. The case is distinguishable in that the garnishee was specifically stated to be a corporation. Here the summons was directed to "Smith Hardware Co." which only purports a corporation. Hunnicutt v. Reed, 149 Ga. 803 ( 102 S.E. 421). Evidence was admissible to show that it was a trade name. Dillard v. Jackson's Atlanta Ready Mix Concrete Co., 105 Ga. App. 607 ( 125 S.E.2d 656). Further, if the case were in no respect distinguishable, we would be bound by the older Supreme Court decision in Mayer Lowenstein v. Chattahoochee Nat. Bank, 46 Ga. 606, supra. And see McCall v. Kliros, 76 Ga. App. 89 ( 45 S.E.2d 72) which allowed the amendment in circumstances similar to those with which we here deal. Cf. East v. Louis Briggs Const. Co., 95 Ga. App. 472 ( 98 S.E.2d 61).
Since the amendment of the return was properly allowed, the question of whether Frank Smith (claimant) did business as "Smith Hardware Co." (garnishee) was for the trier of fact and here plaintiff carried the burden of proof. Smith v. Hartrampf; 105 Ga. App. 40, 43, supra, and citations; Dillard v. Jackson's Atlanta Ready Mix Concrete Co., 105 Ga. App. 607, supra. The admission of photographs, asserted by claimant to be error, was proper since they were relevant to this issue. There was sufficient evidence to support the verdict on the general grounds.
Judgment affirmed. Carlisle, P. J., and Russell, J., concur.