Opinion
40989.
DECIDED OCTOBER 22, 1964.
Trover, etc. Chatham Superior Court. Before Judge McWhorter.
W. Ward Newton, for plaintiff in error.
Robert A. Crim, Lawton, O'Donnell, Sipple Chamblee, Julian C. Sipple, Bouhan, Lawrence, Williams Levy, Alan S. Gaynor, A. R. Neiman, contra.
Where an action is filed against two named persons, described as doing business in a trade name, an amendment seeking to delete such named defendants and to substitute as a party defendant a corporation, with the same name as the alleged trade name of the original defendants, is prohibited by Code § 81-1303.
DECIDED OCTOBER 22, 1964.
This case comes to this court assigning error on the judgment of the trial court sustaining a traverse of service by A. K. Dearing and Sara Dearing, and sustaining a motion to dismiss an amendment to the petition and the petition as amended by Dearing Chevrolet Company. The judgment of the trial court succinctly states the facts pertinent to a decision by this court and is as follows: "This suit was originally brought, as far as local defendants are concerned, that is, residents of this county, against A. K. Dearing and Sara Dearing d/b/a Dearing Chevrolet Company, alleging that A. K. Dearing and Sara Dearing are residents of Chatham County, Georgia. This is a classic way of bringing suit against a copartnership. The return of service made on the original suit is as follows: `I have this day served the within original Bail Trover-Conversion, Petition, Process upon the within named defendants, A. K. Dearing and Sara Dearing d/b/a Dearing Chevrolet Company of Savannah, by handing a copy of the said Bail Trover-Conversion, Petition, Process in person to W. H. Dearing, Vice President of the said defendant company.'
"This on its face is an improper service as against a copartnership. A copartnership does not have a vice president, and to perfect service upon it, service must be made upon one partner to bind the partnership and upon both parties to bind them individually.
"To that return of service A. K. Dearing and Sara Dearing filed a traverse, on which the sheriff and his deputy acknowledged service, and service was made upon counsel of record for all parties by a certificate of mailing.
"Subject to the traverse, A. K. Dearing and Sara Dearing filed a motion to dismiss on the ground that no personal service was ever made upon them, and subject to their traverse of service and motion to dismiss, they filed a plea of nul tiel partnership, setting up that there was no partnership between them and they do not do business as Dearing Chevrolet Company, but that Dearing Chevrolet Company is a corporation.
"Before any decision was had on the traverse and motion or the plea of no partnership, plaintiff amended his petition by striking the party defendant designation `A. K. Dearing and Sara Dearing, d/b/a Dearing Chevrolet Company,' in each and every instance where the same appears in the complaint and process and by substituting in lieu thereof, the party defendant designation, `Dearing Chevrolet Co.' and then by inserting in lieu thereof in paragraph one of said petition that `defendant, Dearing Chevrolet Company, is a corporation authorized to do business in Georgia, with its principal office and place of doing business in Savannah, Chatham County, Georgia.'
"An examination of the return of service on the original petition will show that A. K. Dearing and Sara Dearing were never served, either individually or as a member of the partnership. A partnership cannot be served through another individual unless he is authorized to accept service. There is no allegation that W. H. Dearing was authorized to accept service for the partnership or was its authorized agent in charge of its business. It is simply stated that he is vice president of said defendant company. A partnership does not have a vice president. Therefore, the return of service shows on its face that neither A. K. Dearing nor Sara Dearing was ever served as individuals or as copartners, and there is no legal defendant in the original suit resident of this county.
"After this suit was amended on December 31, 1963, Dearing Chevrolet Company filed a motion to dismiss as to it and also a plea of abatement in which it contended that the alleged amendment was not to correct a misnomer but to add a distinct and new party under Code section 81-1303. The court has given this matter considerable study and has reached two conclusions. First, the original suit was served on no local defendant and this court acquired no jurisdiction over A. K. Dearing or Sara Dearing, by reason of lack of service, and it acquired no jurisdiction over a copartnership composed of A. K. Dearing and Sara Dearing. Therefore, as far as the original suit is concerned, there being no local defendant, the court acquired no jurisdiction over the nonresident defendants, there was nothing in the original suit to amend by, and the amendment amounts to a nullity.
"Counsel for the plaintiff insisted that the original suit was amendable in that the name `Dearing Chevrolet Company' imports a corporation and can be amended by an allegation that the party sought to be served is Dearing Chevrolet Company, a corporation, because there is actually such a corporation in Savannah, and that corporation was served through its vice president, W. H. Dearing. If the suit had been brought against Dearing Chevrolet Company without specifying it was a corporation, plaintiff's contention would have been correct; but the suit was not brought against Dearing Chevrolet Company without describing its character or entity, but was brought against two individuals by name doing business under the name of `Dearing Chevrolet Company.'
"This suit was brought against two natural persons doing business under a name that imported a partnership as well as a corporation. It was, nevertheless, a suit against natural persons, neither of whom was served so as to make this service binding upon them. Therefore, filing was not followed by valid service and there was no suit pending in this county against residents of the county.
"Because Dearing Chevrolet Company imported the name of a corporation affords no reason for alleging it was a corporation and striking the names of the persons who were originally sued from the petition. Natural and artificial persons are different persons under the law. A sole stockholder of a corporation is not the corporation, and our courts have consistently refused to pierce the veil of a corporate entity between natural persons and the corporation in which they hold stock.
"Striking the natural persons sued as defendants and substituting an entirely separate and distinct entity, the corporation, in their stead, in the court's opinion, is the adding of a third party and violates the law of this State. (81-1303) It is certainly not correcting a misnomer or a misdescribed party. The case is entirely different from that in which only a name is used. If the suit had been brought against Dearing Chevrolet Company without specifying what it was, it would have been amendable to specify the name of the defendant. This is not the case here.
"In the court's opinion, the case nearest in analogy to the case at bar is that of Smith v. Commissioners of Roads and Revenue of Glynn County, 198 Ga. 322. Here as in that case a costly mistake was made by suing the wrong parties, a mistake which is not amendable. The cause of action in the case at bar is a conversion, and it was committed, if committed, in the summer of 1963. The statute of limitations is four years. The court has not considered this case from the standpoint of the expiration of any limitation of action, but simply on the procedural points which are controlling.
"From what has been said above, it is, therefore, Considered, Ordered, and Adjudged by the court that the traverse of service of A. K. Dearing and Sara Dearing to the original suit be and the same is hereby sustained and said original suit is dismissed.
"It is further Considered, Ordered, and Adjudged that the motion to dismiss of Dearing Chevrolet Company to the amendment and to the suit as amended be and the same is hereby sustained, and said amendment and suit as amended are hereby dismissed.
"It, therefore, follows that this court loses jurisdiction over all nonresident defendants alleged to be joint trespassers who were joined in the petition.
"In Open Court this 17th day of July, 1964."
1. While error is assigned on the judgment of the trial court sustaining the traverse to the service filed by A. K. Dearing and Sara Dearing such assignment of error presents nothing for decision because these defendants were stricken as parties by the plaintiff, and in his brief, in support of his argument that the amendment was proper, he concedes that "neither A. K. Dearing nor Sara Dearing were ever served." However, other defendants were served so that the action was pending.
2. Paragraph 1 of the original petition read as follows: "The defendants, A. K. Dearing and Sara Dearing d/b/a Dearing Chevrolet Company are residents of Savannah, Chatham County, Georgia and are subject to the jurisdiction of this court." The amendment struck such language and inserted in lieu thereof the following: "The defendant, Dearing Chevrolet Company is a corporation authorized to do business in Georgia with principal office and place of doing business in Chatham County, Georgia."
In Parker v. Kilgo, 109 Ga. App. 698 ( 137 S.E.2d 333), the question of amendment allowable under Code § 81-1303 was dealt with extensively and it was there pointed out that if the amendment is merely descriptive of the named defendant the amendment is allowable but "if the original misnomer or trade name is in fact the name of an existent, whether or not connected with the litigation, the substitution of another entity in place of the original one constitutes the addition of another party, a new defendant, and comes within the inhibition of Code § 81-1303." In that case the original action was against "Comstock Distributing Co., a corporation," and the amended petition was still against "Comstock Distributing Co." but the description of the defendant was changed to read "a business proprietorship owned and operated under said name by R. D. Comstock, Jr." Both before and after the amendment the defendant was "Comstock Distributing Co." Such case distinguished cases such as McGowans v. Speed Oil Co., 94 Ga. App. 35 ( 93 S.E.2d 597), where the original petition named one existent corporation and the amendment sought to substitute another corporation with a similar name, which procedure is not permissible.
The present case originally named as defendants A. K. Dearing and Sara Dearing and described them as doing business as a named partnership. The amendment sought to substitute Dearing Chevrolet Company, a corporation, as the resident defendant. The named defendants in the petition before amendment were existent and the amendment sought to substitute another entity, which procedure falls within the inhibition of Code § 81-1303. See also Pacific Nat. Fire Ins. Co. v. Cummins Diesel of Ga., Inc., 213 Ga. 4 ( 96 S.E.2d 881), where it was held that a petition seeking to recover on the bond of "Fred S. Dale, doing business as Dale Electric Company" could not be amended to recover upon the bond of "Dale Electric Company, a corporation" since each was a separate entity. The trial court did not err in sustaining the motion to dismiss the amendment and the petition as amended, nor in dismissing the action as to the nonresident defendants after the petition was dismissed as to all resident defendants.
Judgment affirmed. Hall and Russell, JJ., concur.