Gold Bond Stamp Company of Georgia v. Ballard

Full title: GOLD BOND STAMP COMPANY OF GEORGIA v. BALLARD

Court: Court of Appeals of Georgia

Date published: Jan 25, 1966

147 S.E.2d 371 (Ga. Ct. App. 1966)

147 S.E.2d 371

Opinion

41729.

ARGUED JANUARY 6, 1966.

DECIDED JANUARY 25, 1966.

Complaint. Clayton Civil and Criminal Court. Before Judge Foster.

Gambrell Mobley, David H. Gambrell, Albert Sidney Johnson, John R. McCannon, for appellant.

Wallace Wallace, Albert B. Wallace, Charles J. Driebe, for appellee.

HALL, Judge.

In an action filed against Gold Bond Stamp Company, a corporation, the trial court did not err in dismissing defensive pleadings filed by Gold Bond Stamp Company of Georgia and awarding judgment for the plaintiff against Gold Bond Stamp Company. Accord Parramore v. Alexander, 132 Ga. 642, 645, 647 ( 64 S.E. 660); McGowans v. Speed Oil Co., 94 Ga. App. 35 ( 93 S.E.2d 597); Ritchie Gas of Cornelia v. Ferguson, 111 Ga. App. 187 ( 140 S.E.2d 925).

The record shows that there exist two distinct corporations, Gold Bond Stamp Company and Gold Bond Stamp Company of Georgia, and the return of the sheriff shows service on Gold Bond Stamp Company, a corporation. Cases relied on by the appellant, involving issues of necessary parties to an action, or holding when the suit misstated the name of the corporate defendant that the misnomer was cured by amendment or by appearance and pleading of the defendant, when it was not shown that there existed a corporation with the name used by the plaintiff in filing the suit, are not controlling. See Mayor c. of Brunswick v. Finney, 54 Ga. 318; Rhodes v. City of Louisville, 121 Ga. 511 ( 49 S.E. 681); Commissioners of McIntosh County v. Aiken Canning Co., 123 Ga. 647 ( 51 S.E. 585); Saunders v. Mayor c. of Arlington, 147 Ga. 581 ( 94 S.E. 1022); Ernest G. Beaudry, Inc. v. Freeman, 73 Ga. App. 736 ( 38 S.E.2d 40).

Since the facts shown in the deposition of the plaintiff are not inconsistent with the facts shown by other parts of the record with respect to the identity of the defendant, the trial court's failure to consider this deposition in ruling on the plaintiff's motion to dismiss the defensive pleadings filed by Gold Bond Stamp Company of Georgia and award judgment for the plaintiff was not harmful to the appellant.

Judgment affirmed. Nichols, P. J., and Deen, J., concur.

ARGUED JANUARY 6, 1966 — DECIDED JANUARY 25, 1966.