Opinion
36937.
DECIDED FEBRUARY 17, 1958.
Pleadings; misnomer, amendment, etc. Gordon Superior Court. Before Judge Mitchell. September 6, 1957.
R. F. Chance, for plaintiff in error.
James B. Langford, contra.
Where the court allowed an amendment subject to demurrer and objection and there was no demurrer or objection or motion to strike the amendment, the court erred in sustaining a motion to strike the petition as amended and to dismiss the action on the ground that the amendment changed the cause of action originally relied upon because it changed the party defendant, and further erred in dismissing the action.
DECIDED FEBRUARY 17, 1958.
John Morgan White sued William Howard Tittle, a nonresident motorist, for damages arising out of an automobile collision. Service was made on William Howard Tittle, III, through the Secretary of State as provided in the Nonresident Motorists Act. William Howard Tittle, the father of William Howard Tittle, III, without being served, filed an answer and cross-action. Subsequently, the plaintiff tendered an amendment wherein he struck the name, "William Howard Tittle," wherever it appeared in the petition and inserted in lieu thereof the name, "William Howard Tittle, III." This amendment was allowed subject to demurrer. William Howard Tittle, III, then moved the court as follows: "I move to strike his entire case and dismiss same, upon the grounds that he did not serve, that no service was had upon the original party, and then that he has changed completely his original cause of action, that is the effect of the amendment, it absolutely changes the original cause of action, because it changes the party." In response to such motion, the court passed the following order: "Upon motion being made by counsel for defendant, the petition of plaintiff, as amended, is dismissed." To this judgment the plaintiff excepts.
1. A plaintiff may amend his petition to show a misnomer in the Christian name of the defendant and to show the real name of such defendant. Code § 81-1206. The plaintiff by his amendment sought to do just this. The amendment was allowed subject to demurrer and objection and the record does not disclose that there was ever any demurrer or objection to or motion to strike the amendment. The motion of William Howard Tittle, III, was to strike the petition as amended on the ground that the amendment changed the cause of action originally set out in the petition because it changed the party defendant.
Since the petition as amended set forth a cause of action as against a general demurrer, the action should not have been dismissed on the ground that the amendment added a new cause of action or a new party defendant. Laslie v. Gragg Lumber Co., 184 Ga. 794 (2) ( 193 S.E. 763, 113 A.L.R. 932).
2. The question whether the case was in default as to William Howard Tittle, III, and whether he may file defensive pleadings after the allowance of the plaintiff's amendment is not presented for determination in this appeal.
The court erred in sustaining the motion to dismiss and in dismissing the action.
Judgment reversed. Quillian and Nichols, JJ., concur.