John L. Hutcheson Memorial Tri-County Hospital v. Oliver, TRI-COUNTY

• Citation: 171 S.E.2d 649,120 Ga.App. 547
• Decision Date: 27 October 1969
• Docket Number: TRI-COUNTY,No. 44687,No. 2,44687,2
• Parties: JOHN L. HUTCHESON MEMORIALHOSPITAL v. Stella OLIVER
• Court: United States Court of Appeals (Georgia)

Page 649

171 S.E.2d 649

120 Ga.App. 547

JOHN L. HUTCHESON MEMORIAL TRI-COUNTY HOSPITAL v. Stella OLIVER.

No. 44687.

Court of Appeals of Georgia, Division No. 2.

Oct. 27, 1969.

Frank M. Gleason, Rossville, for appellant.

Fred M. Milligan, Chattanooga, Tenn., for appellee.

Syllabus Opinion by the Court

BELL, Chief Judge.

1. After being sued for damages based on negligence, the defendant hospital filed a motion to dismiss the complaint on the ground that the party sued was not a legal entity; that John L. Hutcheson Memorial Tri-County Hospital is merely a trade name for the Hospital Authority of Walker, Dade, and Catoosa Counties, Georgia, a corporation, and that action against this hospital must be brought in the corporate name. Both parties stipulated that the facts in the motion were true. After a hearing, the court denied the motion. Thereafter plaintiff moved to amend her summons and complaint so as to substitute the corporate name of the defendant. The court granted the motion. Defendant contends that since the original complaint was not lodged against a legal entity, the motion to dismiss should have been granted and that the court, by allowing plaintiff to amend her complaint to substitute the corporate name of the defendant, permitted the addition of a completely different person as party defendant. Neither promise has merit. A corporation conducting business in a trade name may sue or be sued in the trade name. Executive Committee of the Baptist Convention v. Smith, 44 Ga.App. 184, 161 S.E. 143, affirmed 175 Ga. 543, 165 S.E. 573. When a complaint is brought against a defendant in a trade name, the complaint is amendable by stating the real name of the person doing business under that name; and the amendment does not introduce a new party. Hudgins Contracting Co. v. Redmond, 178 Ga. 317(2), 173 S.E. 135; Mauldin v. Stogner, 75 Ga.App. 663(2), 44 S.E.2d 274; Moody A.F.B. Fed. Credit Union v. Kinard, 116 Ga.App. 163, 164, 156 S.E.2d 526.

2. The court denied defendant's motion for summary judgment. A certificate for immediate review was not issued. The case then proceeded to trial. Defendant now enumerates as error the denial of his motion for summary judgment. An order denying summary judgment is not subject to review by direct appeal or otherwise in the absence of a certificate for review by the trial judge within 10 days of the order. Code Ann. § 81A-156(h). Moulder v. Steele, 118 Ga.App. 87(3), 162 S.E.2d 785. After proceeding to trial the issue is moot. Hill v. Willis, 224 Ga. 263(2), 161 S.E.2d 281; General Shoe Corp. v. Hood, 119 Ga.App. 648, 649, 168 S.E.2d 326; Patterson v. Castellaw, 119 Ga.App. 712, 718, 168 S.E.2d 838.

3. The record does not reflect that defendant made any objection or exception to the instructions given the jury before returning its verdict as required by Code Ann. § 70-207(a). Therefore, nothing is presented for consideration by enumerations of error 5 and 6. Georgia Power Company v. Maddox, 113 Ga.App. 642, 149 S.E.2d 393; Nathan v. Duncan, 113 Ga.App. 630(6), 149 S.E.2d 383.

4. Defendant enumerates as error the overruling of his motion for directed verdict at the close of all the evidence. Again the record does not show that defendant made any motion at the close of the evidence. Questions relating to the proceedings on the trial which are set forth in the enumeration of errors but are not shown in the record of the case cannot be...