Forsyth v. South Side Motors Inc.

A mere clerical error in the description of the property constituting the subject-matter of a bail-trover action may be cured by amendment if it is apparent from the two descriptions, construed together — that is, the description shown by the original petition and that shown by the amendment — that the pleader had in mind the same property.

DECIDED JULY 16, 1949. The plaintiff in error, R. J. Forsyth, herein referred to as the plaintiff, brought a trover action, for the recovery of an automobile, in the Civil Court of Fulton County against the defendant in error, South Side Motors Inc., and its vice-president, H. L. Cawthon, herein referred to as the defendants. The original petition described the automobile as "One 1949 Ford Club Sedan Motor No. 98 BAL 2580." During the course of the trial the proof developed that the correct motor number of the automobile, which was definitely established as being the property in controversy, was 98 BA 125850. At this stage of the trial, counsel for the plaintiff offered an amendment to the petition as follows: "That through inadvertence the motor number of said automobile herein described was listed as 98BAL2580, when said number is 98 BA 125850."

On motions of counsel for the defendants, the trial court entered judgments disallowing the amendment and thereafter granting a nonsuit, and these judgments are assigned as error. In Small v. Wilson, 20 Ga. App. 674 (93 S.E. 518), a bail-trover case, this court held in substance that a mere clerical error in describing the property that constituted the subject-matter of the case may be cured by amendment if it is apparent from the two descriptions, that is, the description as shown by the original petition and the description as shown by the amendment, that the pleader had in mind the same property. This requirement is adequately met by the pleadings here. The proffered amendment expressly so alleges and leaves room for no other conclusion. Had the proffered amendment been allowed, there would have been no variance between the pleadings and the proof, and the case would have been proved as laid. The trial court therefore erred in rejecting the amendment and thereafter in granting a nonsuit.

Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.