Holliday Construction Co. v. Higginbotham

Pope, Judge.

Holliday Construction Company filed this action for declaratory judgment against Dewey S. Higginbotham, Tax Collector of Elbert County, Georgia and other county tax officials. During a hearing on a preliminary matter, it became apparent that plaintiff construction company was in fact a partnership. Defendants moved to dismiss the complaint for failure to have a proper party plaintiff. The trial court took the matter under advisement, and before a ruling was entered plaintiff amended its complaint to reflect its true status: “Holliday Construction Company, a partnership composed of John W. Holliday and Garnett M. Holliday, partners.” The trial court subsequently entered an order granting defendants’ motion to dismiss. Plaintiff brings this appeal from that order.

Since no pre-trial order had been entered in this case, plaintiff was free to amend its complaint as a matter of course. OCGA § 9-11-15 (a). “Where a petition is brought in a name or names which import a corporation or partnership, and not an artificial name which imports neither, it is amendable so as to allege the true nature of the plaintiff or plaintiffs. [Cits.]” Clemons v. Olshine, 54 Ga. App. 290, 291 (187 SE 711) (1936); Smith & Co. v. Columbia Jewelry Co., 114 Ga. 698 (1) (40 SE 735) (1902). Since the complaint in this case was brought in a name which indicated a corporate entity, plaintiff was authorized to amend the complaint declaring its true status as a partnership. Smith v. Commrs. &c. of Glynn County, 198 Ga. 322, 324 (31 SE2d 648) (1944); see also John L. Hutcheson &c. Hosp. v. Oliver, 120 Ga. App. 547 (1) (171 SE2d 649) (1969). It follows that the trial court erred in granting defendants’ motion to dismiss the complaint. See also Rushing v. Ellis, 124 Ga. App. 621 (1) (184 SE2d 667) (1971).

Judgment reversed.

Quillian, P. J., and Sognier, J., concur. Robert M. Heard, John S. Jenkins, for appellees.