2020 Georgia Code
Title 9 - Civil Practice
Chapter 10 - Civil Practice and Procedure Generally
Article 6 - Amendments
§ 9-10-133. Mistake by Clerk or Ministerial Officer

The mistake or misprision of a clerk or other ministerial officer shall in no case work to the injury of a party where by amendment justice may be promoted.

(Laws 1799, Cobb's 1851 Digest, p. 480; Code 1863, § 3436; Code 1868, § 3456; Code 1873, § 3507; Code 1882, § 3507; Civil Code 1895, § 5125; Civil Code 1910, § 5709; Code 1933, § 81-1205.)

- Corresponding provision relating to criminal procedure, § 17-1-3.

- For note discussing the procedure for the issuance and amendment of a writ of execution, see 12 Ga. L. Rev. 814 (1978).

This section applies even where the defendant moves to dismiss the proceeding. Brinson v. Georgia R.R. Bank & Trust, 45 Ga. App. 459, 165 S.E. 321 (1932) (see O.C.G.A. § 9-10-133).

- A certificate of registrars showing the number of qualified voters of the county was properly admitted in evidence even though it was not marked "filed" by the clerk. Andrews v. Butts County, 29 Ga. App. 302, 114 S.E. 912 (1922).

Clerical variance in name of defendant as it appears in petition and process is curable by amendment. Grand Lodge Knights of Pythias v. Massey, 35 Ga. App. 140, 132 S.E. 270 (1926).

- A judgment may be revised or amended, or entered of record, nunc pro tunc, on proper motion, at a term subsequent to that at which the judgment was rendered, so as to make the judgment speak the truth of the decision that was actually rendered, or to make it conform to the verdict; but the judgment must be amended by an inspection of the record, including the pleadings and the verdict, without resort to extraneous evidence. Allen v. Community Loan & Inv. Corp., 78 Ga. App. 611, 51 S.E.2d 872 (1949).

- Where the process contains a command to the defendant to appear in court at a certain time for a specified purpose, and where this process is actually executed by the proper officer, the mere fact that the formal direction to the officer to execute the process is omitted therefrom would be at most a mere clerical omission or irregularity, which could be cured by amendment. Gay v. Sylvania Cent. Ry., 79 Ga. App. 362, 53 S.E.2d 713 (1949).

- If, by virtue of a process, although defective, a defendant has been properly served by one lawfully authorized to effect the service, although the process was not so directed to the officer, and if that process has properly put the defendant on notice of the proceeding, and when the defendant's appearance will be required, such process has properly served its purpose. Gay v. Sylvania Cent. Ry., 79 Ga. App. 362, 53 S.E.2d 713 (1949).

- Where there is a timely and good faith compliance with a deputy clerk's uncontroverted intention that the act of delivery of a complaint to a deputy sheriff would constitute delivery to and receipt by the clerk for purposes of filing, the complaint is to be considered filed as of the date of the compliance with that expressed intention and the trial court errs in failing to grant a motion to direct the clerk to change the "clerical error" regarding the filing date of the complaint. Forsyth v. Hale, 166 Ga. App. 340, 304 S.E.2d 81 (1983).

Cited in Sussan v. Smith, 52 Ga. App. 800, 184 S.E. 643 (1936); Georgia Sec. Co. v. Sanders, 74 Ga. App. 295, 39 S.E.2d 570 (1946); Banister v. Hubbard, 82 Ga. App. 813, 62 S.E.2d 761 (1950); Butts County v. Pitts, 214 Ga. 12, 102 S.E.2d 480 (1958); Reeves v. Reeves, 105 Ga. App. 333, 124 S.E.2d 671 (1962); Aetna Cas. & Sur. Co. v. Sampley, 108 Ga. App. 617, 134 S.E.2d 71 (1963); Boockholdt v. Brown, 224 Ga. 737, 164 S.E.2d 836 (1968); Orr v. Culpepper, 161 Ga. App. 801, 288 S.E.2d 898 (1982).

RESEARCH REFERENCES

Am. Jur. 2d.

- 15A Am. Jur. 2d, Clerks of Court, § 24.

- 14 C.J.S., Clerks of Courts, § 53; 71 C.J.S., Pleading, § 80.

- Effect of mistake in reference in statute to another statute, constitution, public document, record, or the like, 5 A.L.R. 996; 14 A.L.R. 274.