White v. Tittle

Felton, Chief Judge.

1. A plaintiff may amend his petition to show a misnomer in the Christian name of the defendant and to show the real name of such defendant. Code § 81-1206. The plaintiff by his amendment sought to do just this. The amendment was allowed subject to demurrer and objection and the record does not disclose that there was ever any demurrer or objection to or motion to strike the amendment. The motion of William Howard Tittle, III, was to strike the petition as amended on the ground that the amendment changed the cause of action originally set out in the petition because it changed the party defendant.

Since the petition as amended set forth a cause of action as against a general demurrer, the action should not have been dismissed on the ground that the amendment added a new cause of action or a new party defendant. Laslie v. Gragg Lumber Co., 184 Ga. 794 (2) (193 S. E. 763, 113 A. L. R. 932).

2. The question whether the case was in default as to William Howard Tittle, III, and whether he may file defensive pleadings after the allowance of the plaintiff’s amendment is not presented for determination in this appeal.

The court erred in sustaining the motion to dismiss and in dismissing the action.

Judgment reversed.

Quillian and Nichols, JJ., concur.