Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 81-105 and 81-1206, are included in the annotations for this Code section.

It was not necessary to attach copy of will to claim affidavit. Smith v. Francis, 221 Ga. 260, 144 S.E.2d 439 (1965) (decided under former Code 1933, § 81-105).

In common-law form of ejectment, it is not necessary to set out chain of title under which plaintiffs claim. Jackson v. Sanders, 199 Ga. 222, 33 S.E.2d 711 (1945) (decided under former Code 1933, § 81-105).

Letters relied on to establish acknowledgement of indebtedness sued on constituted part of cause of action, and were properly attached to petition. Martin v. Mayer, 63 Ga. App. 387, 11 S.E.2d 218 (1940) (decided under former Code 1933, § 81-105).

In action to recover for premiums on insurance policies, it is not necessary to attach policies or copies thereof as exhibits to petition. Hames v. Georgia Ins. Serv., Inc., 110 Ga. App. 376, 138 S.E.2d 607 (1964) (decided under former Code 1933, § 81-105).

Answer required from all parties named in complaint.

- When an answer was filed in the name of only one of four separate entities named as defendants in the action, the other three defendants could not benefit from the answer and, having filed no answer of their own, were in default. McCombs v. Southern Regional Medical Ctr., Inc., 233 Ga. App. 676, 504 S.E.2d 747 (1998).

Failure to name party.

- Appellate court could not address complaints about a county since the county was not a named party to the case and the plaintiff did not seek to join the county in the proceedings below. Strykr v. Long County Bd. of Comm'rs, 277 Ga. 624, 593 S.E.2d 348 (2004).

Error for trial court to consider evidence outside of pleadings.

- Trial court erred in finding that a mortgagor's claim that the mortgagee breached the mortgagee's duty in failing to provide proper notice of the foreclosure sale showed no basis for a wrongful foreclosure claim because an allegation that the lender failed to provide notice of foreclosure as required by O.C.G.A. § 44-14-162.2 supported a wrongful foreclosure claim under Georgia law and the trial court erroneously considered the mortgagee's evidence outside of the pleadings. Mbigi v. Wells Fargo Home Mortg., 336 Ga. App. 316, 785 S.E.2d 8 (2016).

Proper remedy for seeking more particularity.

- Trial court erred in granting the defendants' motions to dismiss the plaintiffs' complaint for failure to state a claim upon which relief could be granted and for judgment on the pleadings because the trial court should have required the plaintiffs to amend the plaintiffs' complaint and provide a more definite statement of the plaintiffs' claims before passing upon the motions; the amended complaint was a "shotgun pleading" because the complaint was not a short and plain statement of the claims that the plaintiffs asserted as required by O.C.G.A. § 9-11-8(a)(2)(A) of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, the complaint did not give the defendants fair notice of the nature of the claims, and the complaint did not conform to several of the specific pleading requirements of the Act, specifically O.C.G.A. §§ 9-11-8,9-11-9, and9-11-10. Bush v. Bank of N.Y. Mellon, 313 Ga. App. 84, 720 S.E.2d 370 (2011).

More definitive statement.

- Requiring the plaintiff to make a more definite statement of his or her claim saves judicial resources and permits the trial court, when a sufficiently more definite statement has been pled, to determine whether the complaint states a claim by applying the usual standards for the legal adequacy of a complaint; although the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, does not expressly authorize a court to order a more definite statement in the absence of a motion, O.C.G.A. § 9-11-12(e), there is no reason that a court cannot do so as an exercise of the court's inherent powers to manage the court's docket and to compel compliance with the rules and requirements of civil procedure. Bush v. Bank of N.Y. Mellon, 313 Ga. App. 84, 720 S.E.2d 370 (2011).

When a trial court orders a plaintiff to make a more definite statement of his or her claims, the court should identify the ways in which the complaint fails to conform to the pleading requirements of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, and the court also should warn the plaintiff about the potential consequences of a failure to replead in a way that conforms to these requirements; if the court still cannot ascertain the nature of the claims that the plaintiff seeks to assert, the court may enter another order to replead again, but the trial court and the defendants need not become caught in an endless cycle of attempts to replead, and if it appears that a plaintiff is unable or unwilling to plead in conformance to the Civil Practice Act and the directions of the court, the court may be authorized in some cases to dismiss the complaint, not for a failure to state a claim, but for disregard of the rules and orders of the court. Bush v. Bank of N.Y. Mellon, 313 Ga. App. 84, 720 S.E.2d 370 (2011).

Cited in Murrey v. Specialty Underwriters, Inc., 233 Ga. 804, 213 S.E.2d 668 (1975); Chupp v. Henderson, 134 Ga. App. 808, 216 S.E.2d 366 (1975); Barrett v. Simmons, 235 Ga. 600, 221 S.E.2d 25 (1975); Vaughn v. Collum, 136 Ga. App. 677, 222 S.E.2d 37 (1975); Roe v. Doe, 246 Ga. 138, 268 S.E.2d 901 (1980); Cato Oil & Grease Co. v. Lewis, 250 Ga. 24, 295 S.E.2d 527 (1982); Bakhtiarnejad v. Cox Enters., 247 Ga. App. 205, 541 S.E.2d 33 (2000); Smith Serv. Oil Co. v. Parker, 250 Ga. App. 270, 549 S.E.2d 485 (2001); Perry Golf Course Dev., LLC v. Hous. Auth., 294 Ga. App. 387, 670 S.E.2d 171 (2008); Fernandez v. WebSingularity, Inc., 299 Ga. App. 11, 681 S.E.2d 717 (2009); Racette v. Bank of Am., N.A., 318 Ga. App. 171, 733 S.E.2d 457 (2012); Mecca Constr., Inc. v. Maestro Invs., LLC, 320 Ga. App. 34, 739 S.E.2d 51 (2013); Avery v. Paulding County Airport Auth., 343 Ga. App. 832, 808 S.E.2d 15 (2017).

Failure to specify court not fatal defect when defendant answered in correct court.

- Even though the original petition was never formally amended to cure a failure to specify a court, the defect was not a ground for dismissal since the defendant admitted service of the petition and answered the petition in the correct court. Mincey v. Stamper, 253 Ga. 301, 319 S.E.2d 857 (1984).

Plaintiff's name must import person recognized by law.

- Action cannot be maintained in a name as plaintiff which is neither that of a natural person, a partnership, nor of such artificial person as is recognized by the law as capable of suing, and a proceeding commenced in such a name, there being no plaintiff, is not an action, but a mere nullity, and may be dismissed at any time on motion. Board of Educ. v. Hall, 189 Ga. 615, 7 S.E.2d 183 (1940) (decided under former Code 1933, § 81-1206).

Amendment declaring status of party.

- Action brought in name which is neither that of natural person, nor corporation, nor partnership, is a mere nullity; but if the name imports a corporation or partnership, amendment declaring status of the party may be allowed. Johnson & Johnson Constr. Co. v. Pioneer Neon Supply Co., 96 Ga. App. 867, 101 S.E.2d 918 (1958) (decided under former Code 1933, § 81-1206).

Right to correct misnomer.

- If the real defendant has been properly served, te plaintiff has the right to amend in order to correct a misnomer in the description of the defendant contained in the complaint. Atlanta Veterans Transp., Inc. v. Westmoreland, 123 Ga. App. 466, 181 S.E.2d 504 (1971); Russell v. O'Donnell, 132 Ga. App. 294, 208 S.E.2d 107 (1974).

Leave of court required to correct capacity of party.

- Failing to name a county board member in the board member's individual capacity is not a mere misnomer that can be corrected without leave of court under O.C.G.A. § 9-11-10(a). Bd. of Comm'rs v. Johnson, 311 Ga. App. 867, 717 S.E.2d 272 (2011).

Correction of misnomer involves no substitution of parties, nor adds new and distinct parties. Atlanta Veterans Transp., Inc. v. Westmoreland, 123 Ga. App. 466, 181 S.E.2d 504 (1971).

Name of either plaintiff or defendant may be corrected by amendment prior to judgment, so long as name by which originally designated party is described imports a person, firm, or corporation, even though it is in fact not so. Russell v. O'Donnell, 132 Ga. App. 294, 208 S.E.2d 107 (1974).

Amendment alleging corporate character.

- If name in complaint does not import a legal entity, but the defendant is in fact a corporation, such defect may be cured by amendment alleging corporate character. Russell v. O'Donnell, 132 Ga. App. 294, 208 S.E.2d 107 (1974).

Trade name.

- Petition brought in trade name may be amended by stating real or true name of the person who purports to carry on business to which petition relates; and such amendment does not state new cause of action or introduce new party. Johnson & Johnson Constr. Co. v. Pioneer Neon Supply Co., 96 Ga. App. 867, 101 S.E.2d 918 (1958) (decided under former Code 1933, § 81-1206).

If complaint is brought in defendant's trade name, complaint is amendable by stating real name of person doing business under that name, and the amendment does not introduce a new party. Thomas v. Home Credit Co., 125 Ga. App. 876, 189 S.E.2d 470 (1972).

If unidentified party is sued as John Doe and served within limitation period, later amendment adding the party's name after the party has been identified will relate back, but if no service has been effected on a "John Doe" this proceeding does not apply. Sims v. American Cas. Co., 131 Ga. App. 461, 206 S.E.2d 121, aff'd sub nom., Providence Wash. Ins. Co. v. Sims, 232 Ga. 787, 209 S.E.2d 61 (1974).

Fact that individual partners were not named in caption of case did not authorize setting aside judgment as this was an amendable defect. Bolton Rd. Medical Ctr. v. Strother & Co., 140 Ga. App. 724, 231 S.E.2d 533 (1976).

Substitution of entirely different parties disallowed.

- Proposed amendment to motion for new trial which attempts to strike name of party or parties thereto and to substitute name of entirely different parties not revealed by contents of the motion to have been intended as parties of reference in the first instance must be disallowed. Goodman v. Kenney, 124 Ga. App. 709, 185 S.E.2d 632 (1971).

Trial court's denial of summary judgment to a hotel limited liability corporation (LLC) in a personal injury action by an injured patron was error as the action was originally brought against a different entity, the patron attempted to add the LLC and then dismissed that action and brought a new action after expiration of the limitations period under O.C.G.A. § 9-3-33 against the LLC based on the renewal statute pursuant to O.C.G.A. § 9-2-61, but the patron never sought or obtained court permission to add the LLC as a party, as required by O.C.G.A. §§ 9-11-15(a) and9-11-21; as the amendment to add the LLC was more than a correction of a misnomer because the two named defendants were separate entities, O.C.G.A. § 9-11-10(a) was inapplicable and leave of court was required in order to add the LLC. Valdosta Hotel Props., LLC v. White, 278 Ga. App. 206, 628 S.E.2d 642 (2006).

"Interested party."

- Party whose interest in property derived from an unrecorded deed received from a party who was the holder of a deed to secure debt from the record owner of the property was not an "interested party" under paragraph (1) of O.C.G.A. § 9-11-10 and had no right under O.C.G.A. § 9-11-24(a) to intervene in an in rem judicial tax foreclosure proceeding. Burruss v. Ferdinand, 245 Ga. App. 203, 536 S.E.2d 555 (2000).

Use of name of deceased party.

- In a foreclosure proceeding, the trial court did not err in continuing to exercise jurisdiction after having been informed of the death of a party since the affidavit of dispossession and summons listed the tenant as "name of deceased or persons in possession" of the premises. Robinson v. Georgia Hous. & Fin. Auth., 244 Ga. App. 653, 536 S.E.2d 548 (2000).

Application to forfeiture proceedings.

- Under O.C.G.A § 9-11-81 (applicability of chapter), the incorporation by reference provision of O.C.G.A. § 9-11-10, including incorporation of exhibits attached to pleadings, applies to forfeiture proceedings, unless specific, expressly prescribed rules of the forfeiture statute conflict with the incorporation of exhibits provisions. Bell v. State, 234 Ga. App. 693, 507 S.E.2d 535 (1998).

Properly considered in motion to dismiss.

- In city's suit against a landowner for specific performance of the parties' agreement, the city's complaint attached the parties' agreement along with several other exhibits, which under O.C.G.A.9-11-10(c) were properly considered by the trial court in ruling upon the landowner's motion to dismiss under O.C.G.A. § 9-11-12(b)(6). Gold Creek SL, LLC v. City of Dawsonville, 290 Ga. App. 807, 660 S.E.2d 858 (2008).

Documents attached to motion to dismiss could not be considered.

- Trial court erred in dismissing a pro se borrower's complaint for wrongful foreclosure and breach of contract against the borrower's lender's alleged assignee; the trial court could not consider documents attached to the motion to dismiss, and the complaint adequately alleged failure to give the borrower notice and improper advertising, contrary to O.C.G.A. §§ 44-14-162(a) and44-14-162.2. Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750, 751 S.E.2d 545 (2013).

Consideration of city's ordinance during motion for judgment on pleadings.

- In a dispute between a city and a nude dancing establishment over the city's sexually-oriented business ordinance, copies of the ordinance and other materials attached to the complaint were part of the pleadings and were properly considered on a motion for judgment on the pleadings pursuant to O.C.G.A. § 9-11-10(c). Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 764 S.E.2d 398 (2014).

Written instrument attached as exhibit to a pleading will prevail over allegations of the pleading. H & R Block, Inc. v. Asher, 231 Ga. 780, 204 S.E.2d 99 (1974).

Am. Jur. 2d.

- 61A Am. Jur. 2d, Pleading, § 31 et seq.

C.J.S.

- 35A C.J.S., Federal Civil Procedure, §§ 238, 251, 289, 292, 389. 71 C.J.S., Pleading, §§ 43 et seq., 64, 68, 74, 86, 87, 90, 117, 118, 259.

ALR.

- Necessity of pleading that tort was committed by servant, in action against master, 4 A.L.R.2d 292.

Propriety of attaching photographs to a pleading, 33 A.L.R.3d 322.

Dismissal of state court action for plaintiff 's failure or refusal to obey court order relating to pleadings or parties, 3 A.L.R.5th 237.

Propriety and effect of use of fictitious name of plaintiff in federal court, 97 A.L.R. Fed. 369.

Propriety of use of fictitious name of defendant in federal district court, 139 A.L.R. Fed 553.