Executive Committee of Baptist Convention v. Smith

• Decision Date: 07 October 1931
• Docket Number: 21445.
• Citation: 161 S.E. 143,44 Ga.App. 184
• Parties: EXECUTIVE COMMITTEE OF BAPTIST CONVENTION v. SMITH et al.
• Court: Georgia Court of Appeals

161 S.E. 143

44 Ga.App. 184

EXECUTIVE COMMITTEE OF BAPTIST CONVENTION v. SMITH et al.

No. 21445.

Court of Appeals of Georgia, First Division

October 7, 1931

Rehearing Denied Nov. 10, 1931.

Syllabus by the Court.

Traverse to garnishee's answer denying allegation that property was not subject to garnishment, and asserting identity between claimant and debtor, held sufficient "traverse" being denial.

Judgment against person in trade-name is not void.

Corporation which owned and operated hospital under trade-name, and alone was served with and defended suit against hospital held bound by judgment, so that its bank deposits were subject to garnishment.

1. The trial judge did not err in overruling the demurrers to the traverse.

2. "Appearance and pleading shall be a waiver of all irregularities of the process, or of the absence of process and the service thereof."

3. "A judgment rendered against a person [natural or artificial] in his assumed or trade name is not void."

4. There being ample evidence to show that the Georgia Baptist Hospital had no physical property and was inactive as a corporation at the time of the injury to the plaintiff, that it was never served with or defended the suit in this case that the hospital was owned by the Executive Committee of the Baptist Convention of the State of Georgia and operated by it under the trade-name of Georgia Baptist Hospital at the time of the injury to the plaintiff, that said Executive Committee was the wrongdoer, was served with said suit, and appeared and defended the action; and there being ample evidence to support the jury's verdict finding in favor of the traverse to the answer of the bank and holding the funds of the garnishee bank subject to the judgment of the plaintiff in fi. fa., and no reversible error of law being pointed out by themotion for a new trial, there is no reason in law, good morals, or justice why the said Executive Committee should not be bound by the judgment in this case, and this court therefore holds that the trial court did not err in overruling the motion for a new trial.

Error from Superior Court, Fulton County; E. E. Pomeroy, Judge.

Action by Mrs. L. M. Smith against the Georgia Baptist Hospital, in which the 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, and claimant's motion for new trial was overruled, and claimant brings error.

Affirmed.

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

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

LUKE J.

This case is before this court for the third time. A brief synopsis of the preceding procedure is essential to a clear understanding of the issue now involved. On the 29th of May, 1926, Mrs. Smith filed a suit for damages against the Georgia Baptist Hospital, alleged to be a corporation. She alleged and proved to the satisfaction of the jury that while she was a pay patient at the Georgia Baptist Hospital, and while undergoing an operation in said hospital, and while lying unconscious and helpless, she was seriously burned and permanently injured (the sight of one eye being practically destroyed and the other very greatly impaired) through the gross negligence of one of the defendant's anesthetists, who, while administering ether to the plaintiff, allowed it to come in contact with the plaintiff's face and eyes, seriously burning her face, causing her intense and excruciating pain and suffering for many months, practically destroying her eyesight, and leaving her face disfigured for life. Upon the overruling of the defendant's motion for a new trial, it brought the case to this court, and this court held that "the verdict in favor of the plaintiff [for $8,000] was authorized, and none of the special grounds of the motion for a new trial require a reversal of the judgment below." A rehearing was denied by this court and an application for certiorari was denied by the Supreme Court. See Georgia Baptist Hospital v. Smith, 37 Ga.App. 92, 139 S.E. 101, 102. Thereafter Mrs. Smith had summons of garnishment issued, directed to the Atlanta & Lowry National Bank and the Citizens' & Southern National Bank, directing them to answer what money, funds, or property they had on hand belonging to the defendant Georgia Baptist Hospital. Thereupon the Executive Committee of the Baptist Convention of the State of Georgia, a corporation, filed a claim setting up that at the time of said summons of garnishment the Atlanta & Lowry National Bank had on hand the sum of $546.54 deposited to an account carried as "Georgia Baptist Hospital," and the Citizens' & Southern had on hand the sum of $6,007.82, deposited to an account carried as "Georgia Baptist Hospital," but that said funds were not the money and property of the defendant in fi. fa.,Georgia Baptist Hospital, but the property of the said Executive Committee of the Baptist Convention of the State of Georgia. Thereafter the banks, in reply to the summons of garnishment, answered that they had these respective sums on hand in an account known as the "Georgia Baptist Hospital," but that they were informed and believed, and therefore answered, that said funds belonged to the Executive Committee of the Baptist Convention of the State of Georgia and were not the funds of the defendant Georgia Baptist Hospital. Thereafter Mrs. Smith filed a traverse to said answer, and the traverse and the claim case came on for trial, and the jury, at the direction of the court, found a verdict against the claimant and in favor of the plaintiff in fi. fa., and sustaining the traverse, and judgment was entered against the claimant and the surety on its bond. Thereafter said claimant and its surety on the garnishment dissolution bond made a motion for a new trial, which was overruled, and they brought the case to this court by bill of exceptions, and the judgment of the trial court was reversed by this court on the ground that the record showed that the judgment in the damage suit was against a separate and distinct corporation from the corporation whose funds it sought to subject by process of garnishment. See Executive Committee, etc., v. Smith, 39 Ga.App. 417, 147 S.E. 418, 420. Thereafter Mrs. Smith filed an amended traverse and an amendment to said amended traverse to the answer of the Citizens' & Southern Bank, garnishee. Said Executive Committee demurred to said traverse as amended and moved to strike the same, and the demurrers and motion were overruled by the trial judge. The claimant excepted pendente lite to this judgment and now assigns error thereon. Thereafter said claim and said amended traverse came on for trial. It was agreed by all parties that the said traverse and claim be consolidated and tried as one case, and that the verdict be rendered on the traverse alone, and that the verdict on the traverse should control the said claim also. The jury rendered a verdict sustaining the traverse and finding said funds subject, and judgment was entered adjudging the $6007.82 in the hands of the garnishee subject to the process of garnishment and subject to the judgment obtained by Mrs. Smith in the main suit. The Executive Committee and its surety on the garnishment bond filed a motion for a new trial, and a rule nisi was issued, directing that Mrs. Smith, the Georgia Baptist Hospital, a corporation, and the Citizens' & Southern Bank show cause why the same should not be granted. This motion for a new trial, after being amended, was overruled, and to that judgment the movants excepted, and now assign the same as error.

The substance and effect of the amended traverse is that the Executive Committee was the real defendant in the original suit and every stage thereof, that it was the owner and operator of the hospital using the name Georgia Baptist Hospital as a trade-name, that said Executive Committee was the real tort-feasor who injured Mrs. Smith, and that therefore said Executive Committee, being the tort-feasor and having defended the suit, is bound by the judgment in favor of the plaintiff. Certain allegations and proofs as shown by the record previously before us, and also embodied in the case sub judice, though strongly persuasive, were not, taken alone, sufficient to show that the Executive Committee had defended the suit. However, these facts, when augmented by vital additional allegations of the amended traverse and proof thereof to the satisfaction of the jury, amply sustain the verdict of the jury and the judgment of the trial court in favor of the traverse and against the claimant. The writer stated in a specially concurring opinion when the case was last before us that "it is inconceivable that the corporation which owned and operated the hospital took no part in defending the damage suit." The record in the present case shows that the Executive Committee, the corporation which owned and operated the hospital, did actually defend the damage suit, as shown by additional allegations and proof not revealed in the record heretofore before us.

The injury complained of was in October, 1925, and the suit was filed in May, 1926. The defense to the original suit was on the merits of the case, and there was no intimation at that time that the Executive Committee was the real owner and operator of the hospital at the time of the injury. The record in the present case clearly discloses that at the time of and prior to the injury of the plaintiff the Georgia Baptist Hospital was a defunct...