Lamas Co. v. Baldwin

• Decision Date: 10 July 1969
• Docket Number: 44238,Nos. 44237,No. 2,s. 44237,2
• Citation: 120 Ga.App. 149,169 S.E.2d 638
• Parties: LAMAS COMPANY, Inc. v. Frank BALDWIN et al. Frank BALDWIN v. HAPPY HERMAN'S, INC. et al
• Court: Georgia Court of Appeals

Page 638

169 S.E.2d 638

120 Ga.App. 149

LAMAS COMPANY, Inc. v. Frank BALDWIN et al.

Frank BALDWIN v. HAPPY HERMAN'S, INC. et al.

Nos. 44237, 44238.

Court of Appeals of Georgia, Division No. 2.

July 10, 1969.

Rehearing Denied July 22, 1969.

Certiorari Denied Sept. 9, 1969.

No. 44237:

Richardson, Chenggis & Constantinides, Platon P. Constantinides, Chamblee, for appellant.

Glenville Haldi, Sid M. Kresses, Atlanta, for appellees.

No. 44238:

Glenville Haldi, Atlanta, for appellant.

Sid M. Kresses, Atlanta, Richardson, Chenggis & Constantinides, Platon P. Constantinides, Chamblee, for appellees.

Syllabus Opinion by the Court

BELL, Presiding Judge.

Frank Baldwin, a subcontractor, brought this suit against Arthur Lames, doing business as Lamas Construction Company, a general contractor, and Happy Herman's Inc., to recover in contract for construction work performed on premises owned by Happy Herman's. After both sides had presented evidence on trial of the case, Lamas made a motion that he be stricken as a party defendant. The court, sitting without a jury, rendered an order striking Lamas as a party, substituting the Lamas Company, Inc., as a party in his place, and awarding judgment for plaintiff against the Lamas Company, Inc., and Happy Herman's, Inc. for $5,409.41 and.$716.85 respectively. The Lamas Company, Inc., took this appeal from the court's decision denying the company's motion to set the judgment aside based on jurisdictional grounds. Plaintiff cross appealed, alleging as error the striking of the individual defendant.

1. Code Ann. § 81A-121 (Ga.L.1966, pp. 609, 632), which provides that 'Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action,' is not applicable here. That section purposes to give relief to a plaintiff who sues too many or too few parties; it was not intended to correct the mistake of suing the wrong party. United States v. Swink, 41 F.Supp. 98, 101; Matsuoka v. United States, D.C., 28 F.R.D. 350. Even under Code Ann. § 81A-121 process and service are still essential to the court's jurisdiction in the absence of waiver. A corporation is a separate and distinct legal entity from a natural person, though the two have similar names. Nix v. Luke, 96 Ga.App. 123, 99 S.E.2d 446. A corporation and even its sole owner and president are two separate and distinct persons. Jolles v. Holiday Builders, Inc., 222 Ga. 358, 360, 149 S.E.2d 814; Thoni Oil, etc., Stations Inc. v. Kimsey, 114 Ga.App. 638, 152 S.E.2d 576; D. H. Overmyer, etc., Co. v. W. C. Caye & Co., 116 Ga.App. 128, 135, 157 S.E.2d 68. It was error to substitute the corporation as a defendant in place of the individual defendant. Compare Pacific Nat. Fire Ins. Co. v. Cummins Diesel of Ga., Inc., 213 Ga. 4, 7, 96 S.E.2d 881; Gibbs v. Rhodes Furniture Co., 58 Ga.App. 352, 353, 198 S.E. 315. Notwithstanding that Lamas may have been sole owner of the ...