Harris v. Taylor , 148 Ga. 663 ( 1919 )

George, J.

(After stating the foregoing facts.)

1. It is conceded that the copy process served upon the plaintiff in error was not signed by the clerk. The motion, in the nature of a general demurrer, to strike the plea in abatement, admits this. The original process was in all respects regular, and was signed by the clerk. True and correct copies of the original petition'and the amendment of January 11, 1916, to which was attached a copy of the judge’s order allowing the amendment, making Harris a party deféndant to the suit, and requiring the clerk to issue process directed to him, “returnable to the next term of this court” (February term, 1916), and providing for service upon him of the petition and process as amended, were served upon the plaintiff in error, along with, the unsigned copy process. Both the petition and the amendment, according to the copy entries of the clerk appearing upon the copy petition and copy amendment served upon plaintiff in error, were regularly filed in the office of the clerk of court. The plaintiff in error appeared at the court and at the term thereafter at which he was required by the original process to appear and plead. He was, therefore, not actually misled. The amended petition was addressed to the court; it set out in detail the demand or cause of action, named the plaintiff and the defendant, and prayed for process and judgment against the latter. Hnder these circumstances, was' the plea in abatement properly stricken ? The question appears not to have been directly passed on by this court. In Cochran v. Davis, 20 Ga. 581, the question was directly made, and the decision in that case apparently rules that defects in the copy are immaterial if the original is correct. However, the decision was controlled by the failure of the defendant in that case to except in time to an order of the court allowing the copy process to be amended by affixing the signature of the clerk thereto. In Ga. So. & Fla. Ry. Co. v. Pritchard, 123 Ga. 320, 323 (51 S. E. 424), the statement in the opinion of Lumpkin, J., in Cochran v. Davis, supra, was declared to be obiter. In Myers v. Griner, 120 Ga. 723 (48 S. E. 113), the original process, which had not been signed by the clerk, was allowed to be amended nunc pro tunc by adding the clerk’s signature. It was there said, obiter, that if the copy served upon the defendant had not been signed by the clerk or his deputy, or if neither the copy nor the original had been signed by the clerk, a different question would have been presented to the court. Section 5551 of the Civil Code requires the clerk to indorse the date of filing in office upon every petition. Section 5552 is as follows: “To every petition the clerk shall annex a process (unless the same be waived), signed by the clerk or his deputy, and bearing test in the name of a judge of the court, and directed to the sheriff or his deputy, requiring the appearance of the defendant at the return term of the court.” Section 5563 requires the clerk to deliver the original petition, with process annexed, together with a copy of the petition and process for each defendant, to the sheriff or his deputy, who-shall serve “such copy” upon each defendant residing .in the county. Under section 5572, “No technical or formal objections shall invalidate any petition or process; but if the same substantially conforms to the requisitions of this Code, and the defendant has had notice of the pendency of the cause; all other objections shall be disregarded.” Our code is liberal in the allowance of amendments, both as to pleadings and process; and section 5709 provides that “The mistake or misprision of a clerk or other ministerial officer shall in no case work to the injury of a party, where by amendment justice may be promoted.” Cases from outside jurisdictions on the point presented are few in number. Owing to the variety of statutes and rules of procedure, such .cases are of little service beyond the jurisdiction where they were decided. However, it has been held that the omission in a copy of a copy of the court clerk’s signature to the original writ is not material. Clutterbuck v. Wildman, 2 Tyrw. (Eng.) 276; Lyon v. Baldwin, 194 Mich. 118 (160 N. W. 428, L. R. A. 1917C, 148). In Lyon v. Baldwin, supra, it was held: “A service of a writ of garnishment is not void because the copy delivered to the garnishee is not dated and does not contain the signature of the clerk.” The omission from the copy delivered of a copy of the judge’s signature does not render the service insufficient. Greenleaf v. Mumford, 30 How. Pr. (N. Y.) 30 (warrant of attachment). In Collins v. Merriam, 31 Vt. 622, the defendant was sued in a justice’s court. He moved to set aside the judgment rendered against him, upon the ground that the copy writ served upon him was not signed by a justice or other officer. The decision was against him, and, while other reasons may have required the decision, it was said, in the course of the opinion in the case: “Suppose there was an omission to annex the name of the magistrate who signed the writ to the copy. I apprehend this would not defeat the effect of the service as a notice, and under our decisions would not constitute matter of abatement.” However, the contrary view of the question was taken by the New Jersey Supreme Court in Steedle v. Woolston, 88 N. J. L. 9 (95 Atl. 737). It is to be noted that the New Jersey case arose in a “small cause court,” and the statute, so far as appears from the decision, did not require a copy of the petition or declaration to Be served upon the defendant along with the writ. It has been noticed that our statute requires service on the defendant of a copy of the petition or declaration. This copy should in reason be considered as a '“part of the notice” to him. We are disposed to agree with the line of decisions to the effect that the copy petition served upon the defendánt may aid the defective process served with it. First National Bank v. Rusk, 64 Or. 35, 44 L. R. A. (N. S.) 138, 127 Pac. 780, 129 Pac. 121); Harvey v. Chicago & N. W. R. Co., 148 Wis. 391 (134 N. W. 839); Lee v. Clark, 53 Minn. 315 (55 N. W. 127); Messervey v. Beckwith, 41 Ill. 452. See also Williams v. Buchanan, 75 Ga. 789. The defect in the copy process did not wholly defeat the effect of the service as a notice; and the plea in abatement was properly dismissed.

2-5. The rulings made in the second, third, fourth, and fifth headnotes require no elaboration.

6. As to the 100 shares of stock standing in the name of Solomon & Company, it is insisted that there was no contractual relation between the bank and plaintiff in error. To this we are not prepared to assent. It is said that section 2248 of the Civil Code, which in part provides that “The stockholder in whose name the capital stock stands upon the books of such corporation at the date of its failure shall be primarily liable to respond upon such individual liability,” fixes the liability under the charter of the Exchange Bank upon Solomon. Solomon is liable to the bank. His liability does not depend upon section 2248, supra. That section did not create such liability as to him. One who knowingly allows his name to appear upon the books of a corporation as the owner of capital stock therein, with the right to receive dividends, vote the stock, and to have the advantage of the appa'rent ownership, is estopped to deny that he is also subject to the burdens, statutory or contractual, imposed upon him as a stockholder in the corporation. He deals with the corporation as a stockholder. He holds himself out to the public as a stockholder. As to the former he is ^stopped to deny, and as to the latter it would be inequitable to permit him to deny, the existence of the apparent relationship. This is according to all the authorities. Section 2248, supra, merely prescribes the statutory rule for locating the burden of liability among the successive owners of stock. It is not applicable here. Solomon is liable to the receivers in this case. It by no means follows that the actual owner of the stock is not-also liable and primarily liable in the suit. The decided cases seem to support this view. Welles v. Larrabee, 36 Fed. 868 (2 L. R. A. 471); Foster v. Brown, 120 Mich. 1 (79 N. W. 696, 77 Am. St. R. 565); Hubbell v. Houghton, 86 Fed. 547 (affirmed, 91 Fed. 453, 33 C. C. A. 574); Dunn v. Howe, 107 Fed. 849 (47 C. C. A. 13); Ohio Valley Bank v. Hulitt, 204 U. S. 167, 168 (27 Sup. Ct. 179, 51 L. ed. 427). See also 1 Michie on Banks and Banking, 170.

7. If we are correct in the foregoing, we do not think it can be said that the’ amendment set up a new cause of action. Relatively to the plaintiff in error he never became a party defendant to the suit, and the suit never became a live action as to him, until the service upon him of the amended petition. It is therefore not a question of adding a new cause of action by amendment. The suit as to him stands just as if in the original action it had been charged that he was the owner of eleven shares of the capital stock which stood in his own name upon the books of the bank, and 100 shares of the capital stock which stood in the name of Solomon & Company, but ’that Solomon & Company were mere brokers or agents for him and had no interest in said 100 shares. But the amendment to the petition, treating it as such, did not set out a new and different cause of action. The cause of action as to the eleven shares of stock standing in the name of the plaintiff in error, and the 100 shares in fact owned by him (according to the allegations of the amendment) but standing on the books of the bank in the name of Solomon & Company, is the same, ultimately one—the individual liability of the plaintiff in error as a stockholder in the Exchange Bank of Macon under its charter. The judgment of the court below, dismissing the plea in abatement and overruling the demurrer to the petition, is

Affirmed.

All the Justices concur.