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75 Ga. App. 663

44 S.E.2d 274

Mauldin v. Stogner

Court of Appeals of Georgia

Decided September 13, 1947

Court of Appeals of Georgia · decided 1947-09-13

Relies on Western & Atlantic Railroad v. Dalton Marble Works · Hudgins Contracting Co. v. Redmond · Smith v. Commissioners of Roads & Revenue

Good law ✅— No negative treatment on recordhow we know

Decided 1947-09-13

How this case has been cited

Cited by 28 later decisions — most recently November 1976 · most notably 120 Ga. App. 547 - John L. Hutcheson Memorial Tri-County Hospital v. Oliver (1969), Winters v. Lewis (1976)

28 state decisions

1101947195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Felton, J.

¶1 1. In every suit in this State there must be a legal entity as the real plaintiff and the real defendant, either a natural person, an artificial person, such as a corporation, or a quasi-artificial person, such as a partnership.

¶2 2. Where the name of the defendant in which the suit is brought does not import a legal entity, but in fact it is a corporation or a partnership, such defect may be cured by an amendment alleging the legal status. Haynes v. Armour Fertilizer Works, 146 Ga. 832 (92 S. E. 648) ; Smith v. Commissioners of Glynn County, 198 Ga. 322 (31 S. E. 2d, 648) ; ■ Western & Atlantic R. Co. v. Dalton Marble Works, 122 Ga. 774 (50 S. E. 978). And when a suit is brought against a defendant in a trade name, the petition is amendable by alleging and inserting the name of the individual doing business under that trade name. Schnore v. Joyner, 42 6a. App. 688 (157 S. E. 353); Williamson v. Gentry, 44 Ga. App. 596 (162 S. E. 395) ; Hudgins Contracting Co. v. Redmond,, 178 Ga. 317 (173 S. E. 135).

¶3 3. Where, as in the present case, an action is brought against “Atlanta Plating Works, having an office and place of business in Fulton County, Georgia,” as defendant, and the plaintiff’s petition is challenged by demurrer on the ground that no party defendant is shown therein, the petition is amendable by alleging that “defendants herein are H. R. Stogner and J. B. Stogner, doing business under the firm name of Atlanta Plating Works, having an office and place of business in Fulton County, Georgia, ” thereby alleging that the defendant was a partnership, and, after the petition -was thus amended, the court erred in sustaining the defendants’ demurrer and in dismissing the action.

¶4 Judgment reversed.

Sutton, C. J., and Parker, J., concur.
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