Dillard v. Jackson's Atlanta Ready Mix Concrete Co.
| Decision Date | 15 March 1962 |
| Docket Number | No. 3,No. 39258,39258,3 |
| Citation | 105 Ga.App. 607,125 S.E.2d 656 |
| Parties | Agnes J. DILLARD v. JACKSON'S ATLANTA READY MIX CONCRETE COMPANY, Inc |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
For reasons stated in the opinion, the trial court did not err in denying the motion for judgment non obstante veredicto, nor in denying the motion for new trial.
Agnes J. Dillard, plaintiff in error, brought suit in Fulton Superior Court against Jackson Ready Mix Concrete Company, Inc., to recover damages alleged to have been sustained in a collision between her automobile and the defendant's truck. A copy of the petition and process was served upon Jackson's Atlanta Ready Mix Concrete Company, Inc. at its place of business, 1000 Seaboard Avenue, in Atlanta. The damage suit was not defended and plaintiff obtained a verdict and judgment, upon which execution issued. The fi. fa. was levied upon the machinery, equipment and trucks found at 1000 Seaboard Avenue, and to this levy Jackson's Atlanta Ready Mix Concrete Company, Inc. filed a statutory claim and a further pleading or affidavit in which it was averred that (a) Jackson's Atlanta Ready Mix Concrete Company, Inc. was not the defendant in fi. fa., and that it had not operated under the assumed or trade name of Jackson Ready Mix Concrete Company, Inc.; (b) Jackson's Atlanta Ready Mix Concrete Company, Inc. had never been served with process in the damage action and (c) that Jackson's Atlanta Ready Mix Concrete Company, Inc. had never had its day in court. There was no demurrer or objection to this pleading or affidavit and the trial proceeded upon the issue of whether Jackson Ready Mix Concrete Company, Inc. and Jackson's Atlanta Ready Mix Concrete Company, Inc. were one and the same; i. e., whether Jackson Ready Mix Concrete Company, Inc. was an assumed or trade name of Jackson's Atlanta Ready Mix Concrete Company, Inc. Evidence was submitted in support of the contention of plaintiff in fi. fa. that such was true, and contra evidence was introduced by the claimant. The jury returned a verdict in favor of the claimant, finding the property not subject. Plaintiff in fi. fa. thereupon filed her motion for new trial, and to the judgment denying the motion as amended she now assigns error.
G. Seals Aiken, Ben F. Sweet, Atlanta, for plaintiff in error.
Scott Walters, Jr., Atlanta, Wavelyn E. Smith, Hapeville, for defendant in error.
1. It is complained in special ground four of the amended motion for new trial that the court failed to charge, pursuant to a written request: 'I charge you that a judgment obtained against a person or corporation in his or its assumed or trade name is not void but is valid and binding upon said person or corporation.' It appears that the court did charge that 'if a corporation or legal entity actually conducts business under an assumed name or trade name, and if such corporation or legal entity be sued in its assumed name or trade name, the fact that the corporation was sued under its trade name and not by its proper name, does not render the judgment void if the corporation is the identical legal entity against whom the judgment was rendered.' The assignment of error complains that the failure to give the request in charge was error because (1) it stated a correct principle of law applicable to the pleadings and the evidence, (2) it was not covered or substantially covered in the general charge, and (3) several of the charges given were in direct conflict with the correct, applicable, and controlling law as contained in said request. As to (1) and (2), a comparison of the request with the charge as given discloses that while the request was a correct statement of a principle, it was indeed covered by the charge, though in slightly different language. The assignment of error is thus insufficient. Griffith v. Newman, 217 Ga. 533, 540(3), 123 S.E.2d 723.
As to (3), it is not pointed out in this ground of the motion what 'several of the charges were in direct conflict,' nor how or wherein the conflict lies,--nor do we find such. It is not complete if reference to other grounds of the motion, or to other portions of the record is necessary to an understanding of the assignment, as is the case here. Loflin v. Home Ins. Co., 40 Ga.App. 246(1), 149 S.E. 308; Davies v. Blasingame, 177 Ga. 450(6), 170 S.E. 477. 'The assignments of error must be complete in themselves.' Leverett, Hall & Christopher, Georgia Procedure & Practice, § 23-9. There is no merit in this ground.
2. In special ground five complaint is similarly made that the court failed to give in charge a request that: 'I charge you that where a judgment is obtained against a person or corporation in his or its assumed or trade name, the said person or corporation is a party to the judgment and is not entitled to file claim for property levied upon to satisfy the judgment.' The court did charge: 'If you find from the evidence in this case that Jackson's Atlanta Ready Mix Concrete Company, Inc. is in reality the defendant in fi. fa., Jackson Ready Mix Concrete Company, Inc., doing business at 1000 Seaboard Avenue, then I charge you that Jackson's Atlanta Ready Mix Concrete Company, Inc. would be precluded from making any sort of claim to the property levied upon, and the purported claim which it filed would be a mere nullity.' The assignments of error are identical with those in special ground four, and for the same reasons are without merit.
3. The charge, complained of in special ground six, that the burden of proof was upon plaintiff in fi. fa. and that if she failed to carry it, a verdict should be returned for the claimant, was proper. It does not appear that the property levied upon was in the possession of the defendant in fi. fa. at the time of the levy. Consequently, under Code § 39-904, the burden of proof was on plaintiff in fi. fa. Hicks v. Hicks, 193 Ga. 382, 18 S.E.2d 763; Whitlock v. Michael, 206 Ga. 749, 58 S.E.2d 833.
4. In special ground seven error is assigned upon the reading by the court, in connection with the charge to the jury, of what was designated by the court as a 'further claim' by Jackson's Atlanta Ready Mix Concrete Company, Inc., and what is designated by plaintiff in error as an affidavit of illegality. Although the defendant in fi. fa. may not file a claim (Goolsby v. Board of Drainage Commissioners, 156 Ga. 213(6-a), 119 S.E. 644), since 'only a third person, not a party to the execution, could interpose a claim' (Wynn v. Irvine's Ga. Music House, 109 Ga. 287, 34 S.E. 582), it appears here that Jackson's Atlanta Ready Mix Concrete Company, Inc. was not a party to the execution unless the jury should find that Jackson Ready Mix Concrete Company, Inc. was an assumed or trade name of Jackson's Atlanta Ready Mix Concrete Company, Inc.
In Pearson v. Stamey, 45 Ga.App. 87, 163 S.E. 264, it was held that where the defendant in fi. fa. files an affidavit of illegality, and a third party interposes a claim, the illegality and the claim make two separate cases. Such is not the case here.
The claim and the affidavit, or 'further claim,' here, both filed by Jackson's Atlanta Ready Mix Concrete Company, Inc., and the fi. fa. with the fact of levy thereunder, were treated by the parties and by the court as pleadings which made the issue to be tried. 1 There is no merit in the contention that it was error for the court to read the 'further claim' or affidavit in connection with its charge as setting forth contentions of the claimant.
5. Special ground eight complains of a charge that where a defendant in a suit is served with a process in which an entirely different person or party is named as defendant, the process is void as to the person so served and a judgment based thereon is likewise void. The charge was a correct statement of the law and was not, for any reason assigned, erroneous. McGowans v. Speed Oil Co., 94 Ga.App. 35, 93 S.E.2d 597; Nashville &c. Ry. Co. v. Edwards, 91 Ga. 24, 16 S.E. 347; Seisel & Co. v. Wells, 99 Ga. 159(1), 25 S.E. 266; Smith v. Hartrampf, No. 39119, 105 Ga.App. 40, 123 S.E.2d 417.
6. A charge to the effect that a judgment rendered against a defendant with a name similar to a particular corporation would not be binding upon that corporation unless the corporation was doing business under the name against which the judgment was rendered or if the corporation was not in fact the legal entity being sued, was not error, since it was adjusted to the pleadings and to the evidence. There is no merit in special grounds nine and ten of the motion.
7. There was no error in the charge that, if the jury should find that plaintiff in fi. fa. did not have a judgment that was binding against Jackson's Atlanta Ready Mix Concrete Company, Inc. their verdict should be for the claimant. Under the pleadings...
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