Atlanta Gas Light Co. v. Pass
| Decision Date | 15 January 1953 |
| Docket Number | Nos. 34328,34329,No. 1,s. 34328,1 |
| Citation | 74 S.E.2d 141,87 Ga.App. 400 |
| Parties | ATLANTA GAS LIGHT CO. v. PASS et al. ALDRIDGE v. PASS et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The court did not err in overruling the motion to vacate the entry of service, the objections to amendments to the petition, and renewed general demurrers to the amended petition.
Robert Pass sued Atlanta Gas Light Company and M.G. Aldridge for damages he sustained, allegedly due to the negligence of the defendants in the operation of a bulldozer on a public highway. The defendant Aldridge appeared specially and moved the court to vacate the return of service as to him. The motion was overruled. The plaintiff amended his petition twice, and to each amendment the defendant Aldridge filed objections to the allowance thereof. The objections were overruled and the amendments allowed. Aldridge renewed his general demurrer to the amended petition, which renewed demurrer was overruled. The defendant Atlanta Gas Light Company filed objection to the allowance of the second amendment, and the objection was overruled. The gas company renewed its general demurrer to the amended petition, which renewed demurrer was overruled. The defendant Aldridge excepts to the overruling of his motion to vacate, his objections to the amendments, and his renewed demurrer. The defendant gas company excepts to the overruling of its objection to the second amendment and its renewed demurrer.
Henry L. Barnett, Calhoun, for Atlanta Gas Light Co.
Y.A. Henderson, Calhoun, for Pass.
Beverly Langford, Calhoun, Matthews, Maddox & Bell, Rome, for Aldridge.
1. The original petition alleged: The process contained the direction: "The defendant Atlanta Gas Light Co. and M.G. Aldridge Co. [are] hereby required personally or by attorney to be and appear ***." The sheriff's return of service as to the defendant Aldridge was as follows: "I have this day served the defendant M.G. Aldridge personally with a true copy of the within petition and process." M.G. Aldridge appeared specially and moved the court to vacate the return of service. The motion was overruled on February 5, 1952, and on the same day the plaintiff filed and had allowed subject to objection his first amendment, which struck the word "Company" from the words "M.G. Aldridge Company" wherever it appeared in the petition and process, so that that defendant appeared as M.G. Aldridge.
Where a corporation, or a trade name or a partnership is named defendant in a suit, the plaintiff may amend the petition to show that the defendant is an individual using a trade name, or to show the correct trade name or to show the names of the partners trading as a partnership. Mauldin v. Stogner, 75 Ga.App. 663, 44 S.E.2d 274, and cit.; American Fidelity & Casualty Co. v. Farmer, 77 Ga.App. 166, 177 (2), 48 S.E.2d 122, and cit.; Schnore v. Joyner, 42 Ga.App. 688(1), 157 S.E. 353; Hudgins Contracting Co. v. Redmond, 178 Ga. 317, 318(2), 173 S.E. 135. "Whether the individual defendant is transacting business under one trade name or another is immaterial, where he is individually served with process directed against him." American Fidelity & Casualty Co. [77 Ga.App. 166, 48 S.E.2d 131.] v. Farmer, supra. The same rule applies where there is no trade name at all. Under the allegations of the petition, the defendant Aldridge could have been a corporation, a partnership, or a person trading individually, and this applies to the direction in the process. Assuming that this was a defect in the process, it was an amendable defect. Schnore v. Joyner, supra. The defendant did not attack the process as being defective, but moved "To vacate the said return of service upon him, M.G. Aldridge, because he is not a party to said suit since he is not named as a defendant in said petition, no judgment or process is not [sic] issued against him." An attack on the process should precede an attack on the service and, where there is a special appearance for the purpose of objecting to the jurisdiction of the person for lack of service, but the defective process is not attacked, such defect in the process is waived. Harrison v. Lovett, 198 Ga. 466, 471(2), 31 S.E.2d 799.
2. Plaintiff in error Aldrige contends that the court erred in overruling his objection to the first amendment to the petition. This amendment struck the word "Company" from "M.G. Aldridge Company" wherever it appeared in the petition and process, so that the defendant appeared as M.G. Aldridge. The first ground of the objection was that the original petition did not contain enough to amend by. The ground is without merit. The plaintiff alleged: that he was traveling along the Dixie Highway about two miles north of Calhoun, Georgia, at about 6 p.m. on October 23, 1950; that it was raining, cloudy and dark; that the defendant Aldridge's bulldozer was in the process of filling a ditch in which a gas line had been laid, and was traveling in an opposite direction from the plaintiff in the plaintiff's traffic lane; that the bulldozer was unlighted; that the plaintiff, because of the lights of an approaching automobile was unable to see the bulldozer until he was too close upon it to stop; that he collided with the bulldozer and was injured in enumerated particulars because of the collision; that he was driving at a reasonable rate of speed of not more than forty miles per hour and was free from fault. The petition alleged a cause of action. Mathis v. Nelson, 79 Ga.App. 639, 640(1), 54 S.E.2d 710; McDowall Transport, Inc., v. Gault, 80 Ga.App. 445, 56 S.E.2d 161. The second, third, and fourth grounds of the objection were that the amendment added a new and...
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