Hudgens v. Douglas
| Decision Date | 08 October 1937 |
| Docket Number | No. 26195.,26195. |
| Citation | 56 Ga.App. 877,194 S.E. 398 |
| Parties | HUDGENS. v. DOUGLAS. |
| Court | Georgia Court of Appeals |
Rehearing Denied Dec. 16, 1937.
Syllabus by Editorial Staff.
Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.
Action by T. D. Hudgens against E. L. Douglas. To review an adverse judgment, plaintiff brings error..
Reversed.
Noah J. Stone, of Atlanta, for plaintiff in error.
E. L. Douglas, of Atlanta, for defendant in error.
Hudgens brought suit against Douglas, seeking to recover actual and punitive damages of the defendant on account of certain alleged trespasses committed by the defendant on the premises leased by him to plaintiff resulting in actual injury to plaintiff's business and the loss thereof. It was claimed by defendant that plaintiff conducted a business on the demised premises under a trade-name, and that he had not registered it in compliance with the act of 1929, Ga.L.1929, p. 233, Code, § 106-301 et seq. It appeared that the lease between the parties was executed by the defendant as lessor and in the individual name of the plaintiff and a partner, as lessees, and not in a trade-name. The claim of plaintiff for damages grew out of certain acts of defendant relative to seeking to evict plaintiff from the rented premises, such as cutting the electric wiring. It does not appear that the trade-name used by plaintiff had any direct connection with the alleged trespass sued for, other than that plaintiff conducted a business in the operation of which he used electric motors, at this location, under a trade-name, that the business was formerly carried on by plaintiff and a partner in their individual names, and that this partner had retired from the firm, and the plaintiff then conducted a business under a trade-name in the building. The trial court denied a motion of plaintiff to overrule defendant's plea in bar setting up the fact that plaintiff had not registered his tradename pursuant to said act of 1929, to which plaintiff excepted pendente lite, and that upon the trial of the case, the only evidence in the record being as to the use of such trade-name by plaintiff, the court directed the jury to find in favor of the defendant "on the plea in bar relative to the trade name." Thereupon, judgment was entered in favor of the defendant against the plaintiff. Plaintiff moved for a new trial upon the general grounds. To the overruling of his motion for new trial, the plaintiff excepts. As stated by plaintiff in error, the question for determination is: "Was it error to overrule the motion to dismiss the plea in bar, based upon the failure to register a trade name as required by law, where plaintiff's cause of action is ex delicto and where the suit was based upon an affirmative, tortuous act?" Under the view we take of this case, no ruling regarding plaintiff's right to. recover of the defendant in this case, other than as might be affected by his failure to register his trade-name in compliance with the above act of 1929, is made.
In the decision of the Supreme Court in Maxwell v. Pierce, 183 Ga. 856, 857, 189 S.E. 847, 848, it was said that: ...
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