1, 2, 3. It is elemental that the name of a party plaintiff cannot be changed by amendment except in rare cases such as where a typographical error is the basis of the amendment.
4. The trial court did not commit reversible error in the rulings on any demurrers.
In August, 1957, a trover suit was filed in the Superior Court of Floyd County by Cy Owens against the Peoples Loan & Finance Corporation, Charles N. McCoy, Douglas Motor Sales, Inc., and Douglas Dennard. A trial of the case resulted in a verdict in favor of the plaintiff against all four defendants. Thereafter, Mr. McCoy and the Peoples Loan & Finance Corporation filed an appeal to the Court of Appeals objecting to said verdict and judgment. See McCoy v. Cy Owens, Inc., 99 Ga. App. 615
(109 S. E. 2d 543), wherein this court held that neither McCoy nor the Peoples Loan & Finance Corporation had been properly seized with process and that this court was without jurisdiction as to these two defendants and that the verdict and judgment were therefore null and void as to them. In Douglas Motor Sales, Inc. v. Cy Owens, Inc., 99 Ga. App. 890
(109 S. E. 2d 874), this court affirmed the judgment of the trial court against Douglas Motor Sales, Inc., and Douglas Dennard. The remittitur from the Court of Appeals in the McCoy case was filed in the trial court on June 13, 1959, and the remittitur in the second case was filed in the trial court on August 5, 1959. Between these two dates the plaintiff filed an amendment, obtained an order from the trial judge for the issuance of additional process, and had the amendment and the process and a copy of the original 1957 petition served on McCoy and the Peoples Loan & Finance Corporation. The amendment, in paragraph 1, proposed to strike the words "of Cy Owens" to read "of Cy Owens, Inc."
On August 19, 1959, Charles McCoy and the Peoples Loan & Finance Corporation filed the following pleadings:
(1) A motion to quash the process on four separate grounds;
(2) A plea to the jurisdiction based on four separate grounds;
(3) Objections to the amendment filed by the plaintiff on July 18, 1959; and
(4) A demurrer to plaintiff's amended petition, on seven special grounds.
The court overruled the motion to quash the process, overruled the plea to the jurisdiction, overruled the objections to the amendment, and overruled grounds 2 and 7 of the demurrer and sustained grounds 3, 4, 5 and 6. Ground 1 of the demurrer contends that paragraph 1 of the amendment is an attempt to substitute a corporation plaintiff in lieu of an individual plaintiff. The appeal here concerns the rulings of the court on the pleadings set out hereinabove.
On the motion to quash (paragraph 1 of which is predicated on the addition of the word, "Inc." after the Words, "Cy Owens"), the word "Inc." is alleged to have been added by amendment. We find that the record shows that the word "Inc." was in the original petition, which, although styled "Cy Owens, Inc. v. Peoples Automobile Loan & Finance Co. et al." recited in the first sentence: "The petition of Cy Owens of Cy Owens, Inc., a corporation organized and existing under the laws of the State of Michigan." The amendment of July 18, 1959 struck the words "of Cy Owens," contended to be a typographical error, and left the words "of Cy Owens, Inc., a corporation", etc. The process was styled "Cy Owens, Inc." and was served on the defendants on July 21 and 27 respectively, of the same year. It is thus undisputed that the defendants were served in a case styled in the correct name of the corporate plaintiff. It cannot be said that a new party was added by amendment because no new matter was added by amendment. Whatever the words "of Cy Owens of Cy Owens, Inc." meant as originally written, the petition must be considered in the condition in which it appeared at the time of the service of process, under authority of Crown Laundry v. Burch, 205 Ga. 211 (53 S. E. 2d 116) where it is stated: "Attaching process to the amended petition is the legal equivalent of attaching process to a petition which in the first instance prayed for process." In that case the prayer for process was added by amendment before service of process. In the present case the introductory statement in the first sentence was amended to delete superfluous matter so that it would correspond to the caption, and the defendants were as a matter of fact served in the case of "Cy Owens, Inc.", this fact appearing on the process, and corresponding with the petition as amended prior to service of process. Therefore, the instant case should not be dismissed on the ground that the plaintiff sought to substitute a new party plaintiff. It is true that a new party plaintiff cannot, under any circumstances, be added by amendment. We see no good purpose to be served by citing the decisions on this point which appear in the brief of the defendants. The motion to quash is not meritorious on any ground assigned. It follows that the court did not err in overruling the motion to quash.
2. The defendant McCoy has filed a plea to the jurisdiction. We do not find anything meritorious in this plea because it is predicated on the same principle of law involved in the motion to quasi, i.e., the allegation that there has been an attempt to add a new and distinct party by amendment, contrary to the provisions of Code 81-1303. The trial court did not err in overruling this plea.
4. We come next to determine the demurrers to the petition as amended. Paragraph 1 of the demurrer was properly overruled by the court for the reason that it alleges that an attempt was made to substitute a corporation plaintiff in lieu of an individual plaintiff. This question has been passed on hereinabove. Paragraph 2 of the demurrer alleges that paragraph 3 of the amendment to the petition is ambiguous in that it is insufficient to put the defendants on notice as to whether the plaintiff's action is based on a claim of title or a right of possession, and that the plaintiff should be required to make an election or strike the paragraph. That paragraph of the amended petition reads as follows: "That said defendant, Douglas W. Dennard, is president of the defendant corporation, Douglas Motor Sales, Inc., and defendant, Charles M. McCoy is vice-president of defendant Douglas Motor Sales, Inc., and is vice-president and manager of defendant Peoples Automobile Loan & Finance Corp. and that each of the defendants individually, and in concert and collusion with each other, knowingly converted said personal property to their uses, and refuses to deliver the above described property to your petitioner or to pay them the profits thereof." We cannot see that this paragraph of the petition is subject to the criticism directed to it, and the demurrer to this paragraph was properly overruled.
Paragraph 3 demurs to the same paragraph of the petition quoted immediately hereinabove by alleging that the phrasing "each of the defendants individually, and in concert in collusion with each other, have knowingly converted said personal property to their uses" as being a mere unsupported conclusion of the pleader. Paragraph 4 of the demurrer objects to the same phrase in the petition and alleges than the petition fails to allege how and by what acts these defendants converted said property. Paragraph 5 of the demurrer goes to the same phrase of the petition and alleges that the phrase is ambiguous, self-contradictory, and not sufficient to put these defendants on notice as to whether their liability is based on individual or collusive action. Paragraph 6 demurs to the same paragraph of the petition and particularly to the phrase reading: "and refuses to deliver or to pay them the profits thereof" because it is alleged that this paragraph fails to show when and where the defendants made such refusal and the name of the person who made demand on them.
It is our opinion that the trial court properly sustained demurrers numbered 3, 4, 5 and 6.
Paragraph 7 demurs to and moves to strike that part of paragraph 3 which reads as follows: "Charles N. McCoy is vice-president of defendant Douglas Motor Sales, Inc." because it is alleged that this is irrelevant and prejudicial and that it has no connection with the ultimate facts involved. The trial court overruled this demurrer and we think properly so because the other pleadings are clear and no one was handed by this phraseology.
Under the record before us we find no reversible error in any of the rulings of the trial court.
ON MOTION FOR REHEARING.
We have read the motion for rehearing carefully. In our original opinion we did not think it necessary to labor through the pleadings to the extent of pointing out, paragraph by paragraph, the motion to quash the process which referred to the amendment filed by the plaintiff on July 18, 1959. It would have been necessary to go into the amendment paragraph by paragraph.
Actually, according to our minds, the amendment contains, as pointed out, an objection to the alleged addition of the word, "Inc." in paragraph 1, and generally otherwise the motion to quash is predicated on the allegation that the process of July 20, 1959, is null and void. We have reread the opinion as it was written and we do believe that we have sufficiently covered each point to which objection is made and we have nothing to add at this point except to deny the motion for rehearing and adhere to our judgment of April 28, 1960.
TOWNSEND, Judge, concurring specially on rehearing.
I concur with the judgment of affirmance, but not with what is said in the motion to rehear nor with the first sentence of the majority opinion. As I pointed out in the first instance, the amendment to the petition in question did not add the word "Inc." to the plaintiff's name, but deleted the superfluous words "of Cy Owens." And while I agree with counsel for the movant that a new party may conceivably be added by deletion as well as addition of material, I find that was not the case here for the reason that the petition and process, at the time they were served upon the defendant designated that defendant as "Cy Owens, Inc.," and it is my position that where the wording of the original petition is such as to suggest a typographical error, and that error is corrected prior to service of process, the petition in the form in which process,and service are made will alone be considered in considering who are the parties to the case.