Maelstrom Properties, Inc. v. Holden
Decision Date | 22 April 1981 |
Docket Number | No. 61811,61811 |
Citation | 280 S.E.2d 383,158 Ga.App. 345 |
Parties | MAELSTROM PROPERTIES, INC. et al. v. HOLDEN. |
Court | Georgia Court of Appeals |
R. Marcus Lodge, Kirk M. McAlpin, Albert H. Conrad, Jr., Atlanta, for appellants.
Michael J. Reily, Atlanta, for appellee.
We granted this interlocutory appeal in order to consider whether the trial judge properly denied the defendant's (appellant) motion for summary judgment, predicated on the expiration of the statute of limitations.
As stated by appellant: "The question presented by this appeal is whether Ga.Code Ann. § 3-805, which tolls the statute of limitations during the period of a defendant's absence from the state, applies to a foreign corporation that has withdrawn from doing business in Georgia in accordance with the procedures set forth in Ga.Code Ann. § 22-1414 ( )."
However, before we determine this question we must first ascertain whether the statute of limitations would otherwise bar the plaintiff.
The last date the plaintiff rendered services for Maelstrom was December 18, 1975. Thus, the plaintiff instituted this suit on an open account against "American Cyanamid Company doing business as The Ervin Company" within the period of the statute of limitations (4 years under Code § 3-706) on December 13, 1979.
Then after the expiration of the 4 years specified in the applicable statute of limitations the plaintiff amended the complaint to allege that Maelstrom Properties, Inc. (the appellant) is the current name of the Ervin Company, the name of the company having been changed in 1979. The amendment sought to recover from Maelstrom as well as American Cyanamid. Service of the amendment was subsequently obtained on May 20, 1980.
CPA § 15(c) ( ) provides:
Within the phrase "changing the party against whom a claim is asserted," "the word 'changing' has been liberally construed by the courts, so that amendments that actually substitute defendants, fall within the ambit of the rule." 6 Wright & Miller Fed. Practice & Procedure 511, § 1498. See 3 Moore's Fed. Practice 15-224, § 15.15(4-2).
"(T)he aim of the relation back rule as to amendment contained in Code Ann. § 81A-115(c) is to ameliorate the impact of the statute of limitation." Rich's v. Snyder, 134 Ga.App. 889, 892(3), 216 S.E.2d 648.
It is therefore clear that plaintiff could amend so as to add the defendant (appellant) if the tests set forth in CPA § 15(c) were met. For a thorough discussion of these principles, see Sam Finley, Inc. v....
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Cobb v. Stephens
...summary judgment, the evidentiary burden as to these issues was upon appellant as the movant. See generally Maelstrom Properties v. Holden, 158 Ga.App. 345, 280 S.E.2d 383 (1981). Upon our review of the record, we find that, when the evidence is construed most strongly against appellant, he......
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Suwannee Swifty Stores v. NationsBank
...of the statute of limitation.' Rich's v. Snyder, 134 Ga.App. 889, 892(3), 216 S.E.2d 648 [(1975) ]." Maelstrom Properties v. Holden, 158 Ga.App. 345, 346, 280 S.E.2d 383 (1981). The issue in this case is not whether the new claims arise out of the transaction raised in the initial pleading,......
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