All misnomers, whether in the Christian name or surname, made in writs, pleadings, or other civil judicial proceedings, shall, on motion, be amended and corrected instanter without working unnecessary delay to the party making the same.
(Laws 1850, Cobb's 1851 Digest, p. 493; Code 1863, § 3413; Code 1868, § 3433; Code 1873, § 3483; Code 1882, § 3483; Civil Code 1895, § 5102; Civil Code 1910, § 5686; Code 1933, § 81-1206.)
Law reviews.- For annual survey on trial practice and procedure, see 61 Mercer L. Rev. 363 (2009).
JUDICIAL DECISIONS
Construed with O.C.G.A. § 9-11-15. - To the extent that O.C.G.A. §§ 9-10-132 and9-11-15 are inconsistent, the latter expression of the legislature, § 9-11-15, controls. Where a party named in a complaint is reasonably recognizable as a misnomer for the real party in interest, the misnomer may be corrected by amendment to the pleadings pursuant to § 9-11-15. United States Xpress, Inc. v. W. Timothy Askey & Co., 194 Ga. App. 730, 391 S.E.2d 707 (1990).
Motion required.
- Personal injury plaintiff's amendment to the complaint to add a party defendant without having first obtained leave of court was ineffective, as O.C.G.A. § 9-10-132 was inapplicable to support plaintiff's claim that it was merely correcting a misnomer because there was no motion made for such relief. Valdosta Hotel Props., LLC v. White, 278 Ga. App. 206, 628 S.E.2d 642 (2006).
Mandatory nature of section.
- The word "shall" as used in O.C.G.A. § 9-10-132 is mandatory and there is no time limit in which a motion for correction of a scrivener's error must be made. Weaver v. Bowers, 218 Ga. App. 724, 463 S.E.2d 50 (1995).
"Christian name" includes name of corporation.
- The term, "Christian name," is used in the sense of given name, and includes the name given to a corporation by law. Knight's Pharmacy Co. v. McCall, 181 Ga. 617, 183 S.E. 497 (1936); Love v. Commercial Credit Co., 64 Ga. App. 18, 12 S.E.2d 99 (1940); Robinson v. Reward Ceramic Color Mfg., Inc., 120 Ga. App. 380, 170 S.E.2d 724 (1969).
This section is applicable to corporations as well as natural persons. Love v. Commercial Credit Co., 64 Ga. App. 18, 12 S.E.2d 99 (1940) (see O.C.G.A. § 9-10-132).
Courts of this state will take judicial cognizance of names and existence of corporations which are of record in the office of the Secretary of State, pursuant to general statutory provisions requiring them to be thus issued and recorded. McGowans v. Speed Oil Co., 94 Ga. App. 35, 93 S.E.2d 597 (1956).
Misnomer of corporation as party in pleadings has same effect as does misnomer of individual. Robinson v. Reward Ceramic Color Mfg., Inc., 120 Ga. App. 380, 170 S.E.2d 724 (1969).
Misnomer of a defendant corporation is waived by an appearance and pleading to the merits. Temperature Control, Inc. v. Diversified Eng'r, Inc., 120 Ga. App. 522, 171 S.E.2d 373 (1969).
Petition brought in trade name of individual may be amended by stating real or true name of the person who purports to carry on the business to which the allegations of the petition relate; the amendment cannot state a new cause of action or introduce a new party. Hudgins Contracting Co. v. Redmond, 178 Ga. 317, 173 S.E. 135 (1934).
Amendment not permitted if new party is introduced.
- Where the effect of an amendment will be to correct the name under which the right party is sued, it should be allowed; if its effect will be to bring a new party on the record, it should be refused. Bell v. Ayers, 82 Ga. App. 92, 60 S.E.2d 523 (1950).
Trial court properly denied plaintiffs' motion to amend their medical malpractice complaint against state entities in order to "correct an alleged misnomer," pursuant to O.C.G.A. § 9-10-132, as plaintiffs sought to add two party defendants, who were new and distinct and who had not been served with process; there was no showing that the parties sought to be added had actual notice of the litigation, pursuant to O.C.G.A. § 9-11-15(c), for purposes of amendment under the relation back doctrine. Green v. Cent. State Hosp., 275 Ga. App. 569, 621 S.E.2d 491 (2005).
Where one corporation is sued for a tort, declaration cannot be amended by substituting another as defendant under the guise of correcting a misnomer. McGowans v. Speed Oil Co., 94 Ga. App. 35, 93 S.E.2d 597 (1956) But see Franklyn Gesner Fine Paintings, Inc. v. Ketcham, 252 Ga. 537, 314 S.E.2d 903 (1984); Pacific Nat'l Fire Ins. Co. v. Cummins Diesel of Ga., Inc., 213 Ga. 4, 96 S.E.2d 881 (1957).
Misnomers in any judicial proceeding on civil side of court may be amended and corrected instanter on the motion. Knight's Pharmacy Co. v. McCall, 181 Ga. 617, 183 S.E. 497 (1936).
Prior to judgment, action misnaming the defendant can be amended to correct the misnomer. Smith v. Hartrampf, 105 Ga. App. 40, 123 S.E.2d 417 (1961), later appeal, 106 Ga. App. 603, 127 S.E.2d 814 (1962).
Insubstantial misnomer curable by verdict and judgment.
- Where a misnomer is an insubstantial but amendable defect which could not injure the defendant, the matter is cured by a verdict and judgment. Robinson v. Reward Ceramic Color Mfg., Inc., 120 Ga. App. 380, 170 S.E.2d 724 (1969).
Judicial notice will be taken of ordinary and commonly used abbreviations and equivalents of Christian names. Robinson v. Reward Ceramic Color Mfg., Inc., 120 Ga. App. 380, 170 S.E.2d 724 (1969).
Misnomer amendable at subsequent term on motion of misnamed party.
- Where the verdict against the defendant in attachment is in favor of the "Albany Hardware & Mill Supply Company" as the plaintiff, a judgment rendered thereon against the garnishee which was entered in the name of "Albany Mill Supply Company," was, at a subsequent term of court, amendable on motion of the plaintiff, by striking therefrom "Albany Mill Supply Company" as the plaintiff, and substituting therefor the "Albany Hardware & Mill Supply Company." Merchants' Grocery Co. v. Albany Hdwe. & Mill Supply Co., 44 Ga. App. 412, 160 S.E. 658 (1931).
No error in allowing amendment of defendant's corporate name.
- Where petition was brought against "Knight Drug Stores, Inc.," court did not err in allowing an amendment, inserting in lieu thereof the correct corporate name "Knight Pharmacy Company," especially when the witness admitted that the witness was president of Knight Pharmacy Company and was served with the petition and process. Knight's Pharmacy Co. v. McCall, 181 Ga. 617, 183 S.E. 497 (1936).
Grant of motion to correct a misnomer in corporate name inappropriate.
- In a negligence suit brought by a pedestrian against an originally named company in the complaint, the trial court abused the court's discretion by granting the pedestrian's motion to correct a misnomer thereby changing the name of the defendant in the action to a limited partnership as the limited partnership was never served with the complaint, delivery of the summons and complaint to the limited partnership's registered agent was insufficient for service as the originally named company was used in the pleadings and the registered agent did not represent that originally named company, and the name change was not a mere correction but more of a party substitution. Nat'l Office Partners, L.P. v. Stanley, 293 Ga. App. 332, 667 S.E.2d 122 (2008).
Allowance of amendment of misnamed defendant without notice to defendant.
- A petition in which it is alleged that the defendant is "The Coca-Cola Bottling Company" is amendable without notice by an amendment which corrects a misnomer in the name of the defendant so as to read that the defendant is "The Coca-Cola Bottling Company of Carrollton;" notice to the defendant of the allowance of the amendment is not necessary where the amendment was allowed subject to demurrer (now motion to dismiss). Carrollton Coca-Cola Bottling Co. v. Pace, 56 Ga. App. 267, 192 S.E. 473 (1937).
Dismissal of action seeking confirmation of arbitration award due to a misnomer in the application was error, especially because the defendants in the action would not have suffered any harm by the correction. Wolfpack Enters. v. Arrington, 272 Ga. App. 175, 612 S.E.2d 35 (2005).
Correction of misnomer did not constitute substitution of parties under O.C.G.A.
§ 9-10-132 or amendment of complaint under O.C.G.A. § 9-11-15(a). - Consumer's lawsuit against a telecommunications company was improperly dismissed because the consumer had effected service, but had wrongly named the company, and correction of the misnomer did not constitute a substitution of the parties under O.C.G.A. § 9-10-132 or an amendment of the complaint under O.C.G.A. § 9-11-15(a); thus, the consumer should not have been required to effect service on the company a second time. Mathis v. BellSouth Telecomms., Inc., 301 Ga. App. 881, 690 S.E.2d 210 (2010).
Cited in Schnore v. Joyner, 42 Ga. App. 688, 157 S.E. 353 (1931); Royal Crown Bottling Co. v. Stiles, 82 Ga. App. 254, 60 S.E.2d 815 (1950); Martin v. Waltman, 82 Ga. App. 375, 61 S.E.2d 214 (1950); White v. Tittle, 97 Ga. App. 185, 102 S.E.2d 689 (1958); Black v. Jacobs, 113 Ga. App. 598, 149 S.E.2d 190 (1966); Stephens v. McDonald's Corp., 245 Ga. App. 109, 536 S.E.2d 566 (2000); Riding v. Ellis, 297 Ga. App. 740, 678 S.E.2d 178 (2009).
RESEARCH REFERENCES
Am. Jur. 2d.
- 61A Am. Jur. 2d, Pleading, § 683.
C.J.S.- 71 C.J.S., Pleading, §§ 340 et seq., 346 et seq.
ALR.
- Amendment of process or pleading by changing description or characterization of party from corporation to individual, partnership, or other association, or vice versa, 121 A.L.R. 1325.
Use of abbreviations of name of municipal body or private corporation in designating party to judicial proceedings, 167 A.L.R. 1217.
Relation back of amended pleading substituting true name of defendant for fictitious name used in earlier pleading so as to avoid bar of limitations, 85 A.L.R.3d 130.