Moody Air Force Base Federal Credit Union v. Kinard
| Decision Date | 12 July 1967 |
| Docket Number | No. 42942,No. 1,42942,1 |
| Citation | 116 Ga.App. 163,156 S.E.2d 526 |
| Parties | MOODY AIR FORCE BASE FEDERAL CREDIT UNION v. P. K. KINARD et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
When a summons of garnishment designates the garnishee by a trade name, and the record shows that the garnishee was a partnership doing business in this name and that one of the partners was served with the summons, the garnishment will not be dismissed as a nullity.
The plaintiff in this garnishment action appeals from the judgments of the trial court (1) dismissing the summons of garnishment filed against Valdosta Mack Sales on motion of P.K. and Andrew F. Kinard, and (2) granting the Kinards' motion (labeled a motion for summary judgment) for dismissal of the garnishment. The motion to dismiss the summons of garnishment states that it is filed by the Kinards 'individually, and as partners doing business under the trade name of Valdosta Mack Sales,' on the ground that the summons of garnishment is void and a nullity because 'Valdosta Mack Sales' is not a legal entity and does not import a corporation or other legal entity. The court's order states that the summons of garnishment is dismissed because it appears on its face 'that the garnishee, Valdosta Mack Sales, is not a legal entity, and that therefore said summons of garnishment is a nullity.'
Burch & Boswell, John S. Boswell, Sr., Valdosta, for appellant.
Young, Young & Ellerbee, F. Thomas Young, Valdosta, for appellees.
The return of service shows that the summons was served The motion upon which the judgment was rendered was filed by the Kinards in response to this service of summons on P. K. Kinard, and itself shows that the Kinards are a partnership operating in the trade name shown on the summons.
The question is whether the initial defective description of the garnishee required the dismissal of the summons even though the record at the time of the dismissal showed that the intended garnishee was served and was a legal entity using the name shown on the summons.
Mauldin v. Stogner, 75 Ga.App. 663, 44 S.E.2d 274; accord Smith v. Hartrampf, 105 Ga.App. 40, 43, 123 S.E.2d 417.
When a petition inadequately or defectively describes the party defendant it may be amended when the amendment serves merely to identify the person intended to be sued, and involves no substitution of parties nor adds a new and distinct party. Schnore v. Joyner, 42 Ga.App. 688, 157 S.E. 353; Stepp v. Hindmon, 98 Ga.App. 420, 105 S.E.2d 794; White v. Tittle, 97 Ga.App. 185, 102 S.E.2d 689; Bell v. Pate, 28 Ga.App. 195 (110 S.E. 498); see Perkins Co. v. Shewmake & v....
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