Mincey v. Stamper

• Court: Georgia Supreme Court
• Writing for the Court: MARSHALL
• Citation: Mincey v. Stamper, 319 S.E.2d 857, 253 Ga. 301 (Ga. 1984)
• Decision Date: 06 September 1984
• Docket Number: No. 41192,41192
• Parties: MINCEY et al. v. STAMPER.

Page 857

319 S.E.2d 857

253 Ga. 301

MINCEY et al. v. STAMPER.

No. 41192.

Supreme Court of Georgia.

Sept. 6, 1984.

Rehearing Denied Sept. 25, 1984.

Charles W. Bell, Downs & Bell, Savannah, for Catherine mincey et al.

Harry Hunter, Sylvania, for Nathaniel Stamper.

MARSHALL, Presiding Justice.

On October 18, 1982, the plaintiffs-appellants filed in the Superior Court of Screven County a petition to remove a cloud from the title to real property in Screven County. By an accompanying letter, counsel for the plaintiffs notified the superior-court clerk that, since the defendant was a nonresident, he would be served by publication (as authorized by OCGA § 9-10-71(a)(1)), arrangements for which had been made. The petition had a caption which included the name of the county and state, the title of the action, the file number and a designation, i.e., "Petition to remove cloud from title," but the name of the court to which the petition was addressed appeared in neither the caption nor the body of the petition. The petition also had no summons attached to it. Counsel for the defendant-appellee was served with a copy of the petition by mail; counsel for both parties had been engaged in preliminary negotiations concerning this case.

On October 21, 1982, a copy of the petition was published by error in "The Sylvania Telephone." On November 12, 1982, the defendant filed in Screven Superior Court an answer and a motion to dismiss on the grounds that the petition was not addressed to any court and that no summons had been issued and served on him. On November 15, 1982, the plaintiffs filed an amendment, which still failed to name the court to which the petition was addressed, but contained the affidavit, notice of summons, certificate of the clerk, the sheriff's return, and the judge's order, which were required to authorize publication of the summons and which were allegedly originally omitted from the original petition by inadvertence. Notice of summons, including the name of the court, was published commencing on November 25, 1982.

Over the next 18 months, counsel for the appellants and the appellee attended several motion hearings, and at each hearing, reference was made to the record to clear up any problem concerning notice. Thinking that this matter had been resolved, the appellants filed a motion to compel discovery and a motion for summary judgment. At the hearing on the motion to compel discovery, the appellants' counsel presented evidence to support that motion, whereas the appellee's counsel renewed this argument on his motion to dismiss.

Counsel for the appellants referred the trial judge to the record to resolve this recurring problem. Without referring to the record, the judge summarily dismissed the case from the bench on both grounds of the motion to dismiss, in an order entered on April 9, 1984. The plaintiffs appeal. We reverse.

1. "Every pleading shall contain a caption setting forth the name of the court and county, the title of the action, the file number, and a designation as in subsection (a) of Code Section 9-11-7 ..." (Emphasis supplied.) OCGA § 9-11-10. "The courts have not attached too much importance to the mere formal parts of a petition, and it has been held that a typographical error in the caption, where the petition, although filed in Fulton County, and obviously intended therefor, inadvertently commenced 'Georgia, Coweta County,' was not subject to demurrer under the former law." 24 EGL Pleading & Practice 238, § 48, citing Craddock v. Foster, 205 Ga. 534, 54 S.E.2d 406 (1949). Similarly, the failure of counsel to sign a petition is an amendable defect under the Civil Practice Act. Cobble v. Ford Motor Credit Co., 129 Ga.App. 210, 199 S.E.2d 392 (1973). Where a petition was addressed to the wrong court (which was without jurisdiction of the subject matter), but was never filed in that court, but instead filed in the correct court, which passed an order requiring service of the petition and an appearance of the defendant before it, the misdirection of the address of the court was an amendable defect, which was cured by the judgment. Wingate v. Gornto, 147 Ga. 192, 194(1), 93 S.E. 206 (1917). The same result has been reached when the petition has been addressed to no court. Lamb v. Lamb, 169 Ga. 567(1), 150 S.E. 817 (1929); Stone v. Colonial Credit Co., 93 Ga.App. 348(4), 91 S.E.2d 857 (1956).

Even under the law prior to the enactment of the Civil Practice Act, it was held that "[s]tatutes allowing amendments are beneficial and are to be liberally and broadly construed." Sou. Grocery Stores, Inc. v. Kelly, 52 Ga.App. 551, 552(2), 183 S.E. 924 (1936). "A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order." OCGA § 9-11-15(a). In contrast to the former pleading statutes, whereunder the pleadings were construed against the pleader, pleadings are now to be "so construed as to do substantial justice," OCGA § 9-11-8(f), so that it is "allowed and required that decisions be made on the merits and not upon the niceties of pleadings." Owens v. Cobb County, 230 Ga. 707, 708, 198 S.E.2d 846 (1973); Johnson v. Johnson, 240 Ga. 21, 23, 239 S.E.2d 346 (1977). "Every court has power: ... To amend and control its processes and orders, so as to make them conformable to law and justice, and to amend its own records, so as to make them conform to the truth." OCGA § 15-1-3(6).

Accordingly, the failure to address the petition to a specific court was an amendable defect, and, although the original petition was never formally amended to cure this defect, we hold that it was not a ground for dismissal where the defendant admitted service of the petition and answered the petition in the correct (superior) court.

2. Service of process is required under OCGA § 9-11-4. In this action to remove a cloud from the title to real property, the plaintiffs undertook to have the petition served on the defendant by publication, as permitted by OCGA § 9-10-71(a). The plaintiffs, being aware that the first attempted summons by publication was defective as premature, amended their...