Lee v. Wade

104 Ga. App. 375 (1961) 121 S.E.2d 694

LEE
v.
WADE et al.

39010.

Court of Appeals of Georgia.

Decided September 12, 1961.

Lewis L. Scott, for plaintiff in error.

Cam U. Young, Franklin, Barham & Coleman, contra.

FELTON, Chief Judge.

"A prayer in a petition praying for process to issue requiring a defendant to answer at a time other than the time provided by law [Ga. L. 1946, pp. 761, 768; Code Ann. § 81-201] is defective and process issued thereon is subject to a motion to quash whether the process actually issued is in accordance with the law or in accordance with the prayer." McCoy v. Romy Hammes Corporation, 99 Ga. App. 513(1) (109 SE2d 807). This defect in the plaintiff's prayer for process was amendable (Malcom v. Knox, 81 Ga. App. 579, 59 SE2d 542), but since the prayer for process was not amended, and since the process itself was amended to conform with the requested invalid term process, the process remained voidable. As this defective process was not waived by the defendants, the trial court did not err in sustaining the defendants' motions to quash the process and dismiss the plaintiff's action.

Judgment affirmed. Bell and Hall, JJ., concur.