Executive Comm. Of Baptist Convention v. Smith

• Decision Date: 16 July 1932
• Docket Number: No. 8797.,8797.
• Citation: 175 Ga. 543,165 S.E. 573
• Court: Georgia Supreme Court
• Parties: EXECUTIVE COMMITTEE OF BAPTIST CONVENTION. v. SMITH et al.

175 Ga. 543

165 S.E. 573

EXECUTIVE COMMITTEE OF BAPTIST CONVENTION.

v.SMITH et al.

No. 8797.

Supreme Court of Georgia.

July 16, 1932.

Rehearing Denied Sept. 22, 1932.

Syllabus by the Court.

1. If a corporation uses an assumed or trade-name in the conduct of its business, it may be sued in the assumed or trade-name which has been adopted by it. Judgment rendered against it in its assumed or trade-name is not void. In accord with the highest authorities, as well as on the principle of estoppel and common fairness, when a party enters his appearance and makes his defense to an action, he cannot afterwards complain of the judgment that may be rendered against him, on the ground that he was sued by the wrong name. From which it follows, as a matter of course, that the action must be regarded as actually pending against him, at least from the time he enters his appearance as a defendant--eo instanto becomes a party defendant and bound by the judgment.

2. The Court of Appeals did not err in affirming the judgment of the lower court in overruling the motion for a new trial.

Certiorari to Court of Appeals.

Action by Mrs. L. M. Smith against the Georgia Baptist Hospital, in which plaintiff recovered judgment and had summons of garnishment issued against the Atlanta & Lowry National Bank and the Citizens' & Southern National Bank. The Executive Committee of the Baptist Convention of the State of Georgia filed a claim to the funds covered by the garnishment, and judgment was rendered for plaintiff on her traverse, which was affirmed by the Court of Appeals (44 Ga. App. 184, 161 S. E. 143), and claimant brings certiorari.

Affirmed.

Jones, Evins, Powers & Jones, of Atlanta, for plaintiff in error.

J. Caleb Clarke, Marion Smith, Howell, Heyman & Bolding, Alston, Alston, Foster & Moise, and Mark Bolding, all of Atlanta, for defendants in error.

RUSSELL, C. J.

In this case a preliminary statement of facts would be a useless repetition. All the material facts appear in the very able opinion of the Court of Appeals delivered by Judge Luke. Executive Committee of Baptist Convention v. Smith, 44 Ga. App. 184, 161 S. E. 143.

After a careful consideration of the entire record, and examination of the judgment of the Court of Appeals, and of the authorities therein cited, we concur in the judgment of the Court of Appeals. It is perfectly plain that the traverse of the answer of the Citizens' & Southern National Bank, which assumed to set up that the fund which stood upon the books of the bank in the name of the Georgia Baptist Hospital, was not in fact the property of that body, but was the property of the Executive Committee of the Baptist Convention of the State of Georgia, was so clear and explicit as to withstand any of the demurrers...