Goodman v. Kenney

Deen, Judge. Within the thirty-day period following a verdict and judgment for the plaintiff, Mrs. A. R. Kenney, in the case of Kenney v. Goodman which was styled Civil Action Number 1784 in the Superior Court of Terrell County, the defendant filed a motion for new trial on the general grounds, styling the case "John C. Goodman v. Roy Lee Rayburn,” which was the title of another case involving Goodman pending at the time in the same court. The motion contained no docket number and referred to the parties only as "plaintiff” and "defendant.” After the thirty days had expired, Goodman attempted to amend the motion by striking the caption and substituting the caption of Case No. 1784. The trial court refused to allow the amendment and defendant appeals. "Every pleading shall contain a caption setting forth the name of the court and county, the title of the action, the file number,” etc. Code Ann. § 81A-110 (a). "The rules applicable to captions, signing and other matters of form of pleadings apply to all motions and other papers provided for by this Title.” Code § 81A-107 (2). Where a proposed amendment to a motion for new trial attempts to strike the name of the party or parties thereto and to substitute the name of entirely different parties not revealed by the contents of the motion to have been intended as the parties of reference in the first instance, the amendment must be disallowed. Athens Truck &c. Co. v. Kennedy, 91 Ga. App. 49 (84 SE2d 608). The thirty days having [710] passed, the amendment could not be treated as a motion for new trial in its own right. Code Ann. § 81A-106 (b). There was accordingly no motion for new trial pending in this case. Submitted October 4, 1971 Decided October 27, 1971. Smith, Gardner, Wiggins, Geer & Brimberry, M. M. Wiggins, Jr., Oscar T. Cook, Jr., for appellant. John R. Irwin, Jesse G. Bowles, for appellee. Judgment affirmed. Bell, C. J., and Pannell, J., concur.