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Lawskills.com Georgia Caselaw
BURROW v. DICKERSON.
40228.
Malpractice by dentist. Fulton Superior Court. Before Judge Moore.
EBERHARDT, Judge.
1. (a) Where a petition containing an improper prayer for process is filed and process is issued and served, the prayer for process may be amended and proper service perfected.
(b) The amendment and service relate back to the filing date of the petition and the cause of action is not barred because the period of the statute of limitation expired between the date of filing and the date of service under proper process.
2. In the situation outlined above and where the plaintiff has tendered and filed the amendment to the prayer almost simultaneously with the original petition, the plaintiff is not barred by laches, though the amendment is not allowed until 21 months after its tender and filing.
This is a malpractice case against a dentist in which the issue relates to service of process. The cause of action arose between June 25 and July 5, 1959. The original petition was filed June 22, 1961, and contained the following prayers for process: "(a) That process issue requiring the defendant to be and appear at the next term of court to answer this complaint; and, (b) That service be perfected on defendant as provided for by law."
The clerk issued process under Code Ann. 81-201 requiring defendant to answer within 30 days. This process was served oh the defendant. On July 21, 1961, the defendant filed a motion to quash on the ground that the process. issued was not prayed for in the petition. Plaintiff tendered and filed an amendment praying proper process on June 22, 1961, which amendment was allowed on March 11, 1963. Service was also perfected on that date.
The defendant then filed a two-fold motion to strike the amendment to the prayer on the grounds that: (a) since lawful process never issued prior to March 11, 1963, the action was barred by the statute of limitation, and, (b) plaintiff was guilty of laches. The trial court overruled the motion, along with a plea in bar and general demurrer raising the same points, and this order is here for review.
1. (a) Despite the 1946 Act (Code Ann. 81-201), any number of cases have arisen where process was prayed under the former law. The cases have uniformly held that if process now required by Code Ann. 81-201 is issued under such prayer, it is defective and subject to a motion to quash. E.g., Malcom v. Knox, 81 Ga. App. 579 (59 SE2d 542); Seaboard Air Line R. Co. v. Hollomon, 95 Ga. App. 602 (98 SE2d 177); McCoy v. Romy Hammes Corp., 99 Ga. App. 513 (1) (109 SE2d 807); Lee v. Wade, 104 Ga. App. 375 (121 SE2d 694); Cook v. Jackson, 107 Ga. App. 251 (1) (129 SE2d 553). See, Leverett, Hall & Christopher, Ga. Procedure & Practice 33, 2-15 (157 and Atkinson's 1963 Supp.). All of these cases state that the defective prayer is subject to amendment, as was done here, or is cured by judgment. Even the complete lack of a prayer for process is amendable. Crown Laundry v. Burch, 205 Ga. 211 (1) (53 SE2d 116), distinguishing Nicholas v. British Amer. Assur. Co., 109 Ga. 621 (34 SE 1004) relied on by defendant. However, in none was the situation presented where, as here, the amendment was allowed and proper process issued after the period of the statute of limitation had run.
2. Defendant also contends that the plaintiff was guilty of laches in failing to proceed for some twenty months after the original service, citing Branch v. Mechanics Bank, 50 Ga. 413. In Branch, there was no service of any process because of a return of non est inventus and the plaintiff sought to amend his prayer five terms later for service by publication. These facts distinguish the case for, as Justice Lumpkin said in White v. Hart, 35 Ga. 269, 271, "if there be a legal cause of action set out in the declaration, and the defendant has had notice of the pendency of the suit, all other objections are to be disregarded, by so amending the proceedings as shall subserve the ends of justice."
The record shows that the amendment was tendered and filed almost simultaneously with the original petition, was later allowed and service perfected before any ruling on the motion to quash. We do not think the plaintiff guilty of laches.
Judgment affirmed. Felton, C. J., and Russell, J., concur
Francis Y. Fife, Sidney T. Schell, contra.
Hurt, Baird & Peek, Benj. B. Blackburn, III, Joe Freeman, for plaintiff in error.
DECIDED JULY 9, 1963.
Friday May 22 22:08 EDT


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