Crown Laundry v. Burch
| Decision Date | 13 April 1949 |
| Docket Number | 16555. |
| Citation | 53 S.E.2d 116,205 Ga. 211 |
| Parties | CROWN LAUNDRY et al. v. BURCH. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The omission of a prayer for process from a petition is an amendable defect.
2. The attaching of process to a petition which has been amended by adding a prayer for process is not supplying process as prohibited by the Code, § 81-1313.
Pittman & Hodge and H. E. Kinney, all of Dalton, for plaintiffs in error.
D W. Mitchell, John C. Mitchell, W. H. Bolling, H. E. Mitchell and Sanford P. Carr, Jr., all of Dalton, for defendant in error.
This case comes to us on certiorari to the Court of Appeals. On May 26, 1948, Charles Burch filed a petition in the Superior Court of Whitfield County, in which he alleged that Crown Laundry and Crown Dye Company had injured his property. He prayed for damages. His petition did not contain a prayer for process. The clerk nevertheless attached process returnable thirty days after service, and Crown Laundry and Crown Dye Company were served with a copy of the petition and of that process on May 26, 1948. They made a motion to quash the service and to dismiss the petition upon the ground that the court was without jurisdiction, since there was no prayer for process and the process attached was for that reason a nullity. Before the motion was heard, and on July 3, 1948 Burch offered to amend his petition by adding the following prayer for process: 'Wherefore, plaintiff prays that process may issue, requiring the said defendants Crown Laundry and Crown Dye Company to be and appear at the July term, 1948, of the Superior Court of said County to answer your petitioner's complaint.' The proffered amendment was disallowed. The motion was then sustained. Burch excepted to that judgment; and the Court of Appeals held that the trial judge erred in refusing to allow the amendment since the defect in the petition was amendable, and in its judgment of reversal gave direction that the amendment be allowed, that the clerk be required to issue process, and that the parties be served as now provided by law. Burch v. Crown Laundry, 78 Ga.App. 421, 50 S.E.2d 768. The petition for the writ of certiorari, which we granted, assigned error only on that ruling.
1. Counsel for the defendant in certiorari concede that the petition, as originally filed, was defective for want of a prayer for process, that the clerk was without authority in such a case to attach process, and that process has not been waived. In other words, it is admitted that the process which was annexed to the petition is a nullity, and that we should deal with the petition just as if no attempt had been made by the clerk to annex process thereto. In all of this we concur for, in the absence of a prayer therefor, the clerk has no authority to issue process, Lowrey v. Richmond & Danville R. Co., 83 Ga. 504, 10 S.E. 123, and 'Void process is equivalent to no process, and the same result would follow from attaching a void process as from a failure to attach any process whatever.' Neal-Millard Co. v. Owens, 115 Ga. 959, 42 S.E. 266, 267. In this situation was the petition amendable by adding a prayer for process? The Court of Appeals held that it was, and relied for its ruling upon Barnes-Fain Co. v. Chandler, 148 Ga. 158, 96 S.E. 179; Glover v. Glover, 151 Ga. 574, 107 S.E. 861; Loudermilk v. Bailey, 159 Ga. 514, 216 S.E. 373; Babcock Bros Lumber Co. v. Hughes, 29 Ga.App. 20, 113 S.E. 816. Those cases are unquestionably authority for the ruling complained of; and the three cases from this court are all full-bench decisions which have not been overruled or materially modified, and since they are not in conflict with any of our older decisions, they are binding upon us and must be followed. There is no request to review and overrule those decisions in the manner prescribed by law, Code, § 6-1611, and so long as they are permitted to stand they have the force and effect of a statute and are controlling on the question there decided. Hagan v. Asa G. Candler, Inc., 189 Ga. 250, 258, 5 S.E.2d 739, 126 A.L.R. 108. Committed then, as we are, to the proposition that a petition without a prayer for process is amendable by adding a prayer therefor, we must agree with the Court of Appeals that the trial judge erred in refusing to allow the...
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