Burrow v. Dickerson, 40228
| Decision Date | 09 July 1963 |
| Docket Number | No. 1,No. 40228,40228,1 |
| Citation | 132 S.E.2d 550,108 Ga.App. 178 |
| Parties | L. M. BURROW v. C. K. DICKERSON |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a). Where a petition containing an improper prayer for process is filed and process is issued and served, the prayer for process may be amended and proper service perfected.
(b). The amendment and service relate back to the filing date of the petition and the cause of action is not barred because the period of the statute of limitation expired between the date of filing and the date of service under proper process.
2. In the situation outlined above and where the plaintiff has tendered and filed the amendment to the prayer almost simultaneously with the original petition, the plaintiff is not barred by laches, though the amendment is not allowed until almost 21 months after its tender and filing.
Hurt, Baird & Freeman, Benj. B. Blackburn, III, Joe Freeman, Jr., Atlanta, for plaintiff in error.
Francis Y. Fife, Sidney T. Schell, Atlanta, for defendant in error.
This is a malpractice case against a dentist in which the issue here relates to service of process. The cause of action arose between June 25 and July 5, 1959. The original petition was filed June 22, 1961, and contained the following prayers for process: '(a) That process issue requiring the defendant to be and appear at the next term of court to answer this complaint; and, (b) That service be perfected on defendant as provided for by law.'
The clerk issued process under Code Ann. § 81-201 requiring defendant to answer within 30 days. This process was served on the defendant. On July 21, 1961, the defendant filed a motion to quash on the ground that the process issued was not prayed for in the petition. Plaintiff tendered and filed an amendment praying proper process on June 22, 1961, which amendment was allowed on March 11, 1963. Service was also perfected on that date.
The defendant then filed a two-fold motion to strike the amendment to the prayer on the grounds that: (a) since lawful process never issued prior to March 11, 1963, the action was barred by the statute of limitation, and, (b) plaintiff was guilty of laches. The trial court overruled the motion, along with a plea in bar and general demurrer raising the same points, and this order is here for review.
1. (a) Despite the 1946 Act (Code Ann. § 81-201), any number of cases have arisen where process was prayed under the former law. The cases have uniformly held that if process now required by Code Ann. § 81-201 is issued under such prayer, it is defective and subject to a motion to quash. E. g., Malcom v. Knox, 81 Ga.App. 579, 59 S.E.2d 542; Seaboard Air Line R. Co. v. Hollomon, 95 Ga.App. 602, 98 S.E.2d 177; McCoy v. Romy Hammes Corp., 99 Ga.App. 513(1), 109 S.E.2d 807; Lee v. Wade, 104 Ga.App. 375, 121 S.E.2d 694; Cook v. Jackson, 107 Ga.App. 251(1), 129 S.E.2d 553. See, Leverett, Hall & Christopher, Ga Procedure & Practice 33, § 2-15 (1957 and Atkinson's 1963 Supp.). All of these cases state that the defective prayer is subject to amendment, as was done here, or is cured by judgment. Even the complete lack of a prayer for process is amendable. Crown Laundry v. Burch, 205 Ga. 211(1), 53 S.E.2d 116, distinguishing Nicholas v. British Amer. Assur. Co., 109 Ga. 621, 34 S.E. 1004 relied on by defendant. However, in none was the situation presented where, as here, the amendment was allowed and proper process issued after the period of the statute of limitation had run.
(b) When a suit is filed before the bar of the statute of limitation attaches but service is not perfected until after the period of the statute has run, the service relates back to the time of filing and the action is not barred. Ellis v. McCrary, 52 Ga.App. 583(2), 183 S.E. 823. See Waldon v. Maryland Cas. Co., 155 Ga. 76(1), 116 S.E. 828; Thompson v. Thompson, 214 Ga. 776, 777, 107 S.E.2d 655 and citations. We think this principle applies here, especially since the defendant as to whom process is sought by the amendment is a party to the original action until a motion to quash is sustained. Douglas Motor Sales v. Romy Hammes Corp., 102 Ga.App. 536, 540, 117 S.E.2d 224. This is especially true since the allowance of amendments of the sort proffered here are largely within...
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