Slater v. Brigadier Homes, Inc.

McMurray, Presiding Judge,

dissenting.

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“Section 81A-121 [OCGA § 9-11-21] parallels Rule 21 of the Federal Rules of Civil Procedure, and the Federal courts have long construed it to require the obtaining of leave of court when the plaintiff seeks to assert a claim against one who is not already a party to the proceedings. [Cits.]” Robinson v. Bomar, 122 Ga. App. 564, 567 (177 SE2d 815). See also C & S Land &c. Corp. v. Yarbrough, 153 Ga. App. 644, 646 (3) (266 SE2d 508). Was defendant Brigadier added as a “new” party and served with process without leave of court? No. Plaintiff did not add a new party when he amended the complaint setting forth the proper agent for service of process. Rather, plaintiff simply perfected service upon a party which had already been named as a defendant in the case. Compare Clover Realty Co. v. Todd, 237 Ga. 821 (229 SE2d 649) in which plaintiff tried to add an entirely new entity as a defendant by amendment. True, the trial court had already granted defendant Brigadier’s motion to dismiss for insufficiency of service of process. But that dismissal was not a final judgment and, in the absence of an order directing the entry of judgment (see OCGA § 9-11-54 (b)), it was subject to revision at any time before the entry of a judgment adjudicating all claims and liabilities of all parties. See Grizzard v. Davis, 131 Ga. App. 577 (206 SE2d 853). Thus, even though defendant Brigadier may have been “dismissed,” it was not added to the suit as a new party when plaintiff amended the complaint. Plaintiff was not required, therefore, to obtain an order pursuant to OCGA § 9-11-21.

Even if plaintiff had been required to obtain an order pursuant to OCGA § 9-11-21, the mere failure to obtain the order does not, in my view, justify the dismissal of plaintiff’s complaint. Ed Miniat, Inc. v. Globe Life Ins. Group, 805 F2d 732, 736, 737 (7th Cir. 1986). See also Daniel & Daniel v. Cosmopolitan Co., 137 Ga. App. 383, 385 (224 SE2d 44). In the absence of a showing that defendant Brigadier was prejudiced by plaintiff’s failure to obtain leave of court, I see no reason why such an oversight could not be corrected. See Ed Miniat, Inc. v. Globe Life Ins. Group, supra.

I would reverse the judgment of the trial court. Defendants have been served with process and discovery is underway. It is time to get to the merits of this case.

I am authorized to state that Presiding Judge Deen, Judge Pope and Judge Beasley join in this dissent.

Decided November 21, 1990 Rehearing denied December 12, 1990 George M. Hubbard III, for appellant. Kennedy, Lewis, Smart & Brannon, Charles W. Brannon, Jr., for appellees.