This appeal arises from an action brought by appellant to recover on certain promissory notes. Appellant appeals from an order of the trial court granting appellees’ motions to dismiss. Although purporting to grant the motions to dismiss, the order recites that the court “considered the briefs filed by the parties and the arguments of counsel.. . and the affidavits, depositions, and other evidence in the record, and . . . treated [appellees’] Motions to Dismiss as alternatively Motions for Summary Judgment under Rule 56 of the Georgia Civil Practice [A]ct.”
Appellant enumerates two errors in the present appeal: (1) the substance of the trial court’s order and (2) the trial court’s conversion of the motions to dismiss to ones for summary judgment.
1. The trial court’s order is in error insofar as it purports to grant summary judgment to appellees. Two reasons mandate reversal on this point: First, appellant was “ ‘entitled to notice of conversion of a motion to dismiss into a motion for summary judgment and 30 days to respond to such motion.’
[Riverhill &c. Assn. v. Cobb County Bd. of Commrs.,
The second, and more important, ground for our reversal of summary judgment is the apparent basis for appellees’ motions to dismiss, that the suit was not brought by the real party in interest pursuant to OCGA § 9-11-17 (a). A real-party-in-interest objection is a matter in abatement and does not go to the merits of the action. See
Rigdon v. Walker Sales & Service,
*580
2. The trial court’s grant of appellees’ motions to dismiss pursuant to OCGA § 9-11-17 (a) is enumerated as error by appellant. We must, thus, examine the substance of the basis of the motions, appellees’ contention that the action on the promissory notes was not brought by the real party in interest. The trial court correctly considered these motions under OCGA § 9-11-43 (b) and exercised its discretion to determine the matter by apparent consideration of evidence presented in part by deposition and affidavits. See
Hart v. DeLowe Partners, Ltd.,
The promissory notes forming the foundation of this action show the only payee to be “GBM Corporation.” The action was styled “Office Supply House, Inc. d/b/a GBM Corporation and Betty Fleming, Plaintiffs.” Appellant Fleming concedes that suit was mistakenly brought on behalf of Office Supply House, Inc. and consented to its dismissal as a party plaintiff. Such dismissal was, in any event, not appealed. Additionally, Fleming concedes that “GBM Corporation” was never incorporated. Instead, it was the trade name used for a short period of time to conduct the business of disposing of certain inventory left over from a prior business enterprise with which she had been involved.
Fleming argues that, under OCGA § 10-1-491, the contract between “GBM Corporation” and appellees is not invalidated solely because the payee was an unregistered trade name. This is true; however, the inquiry is more aptly directed to the current capacity of “GBM Corporation” to bring suit on the promissory notes. “[A] suit may be instituted in the trade name of the plaintiff if it imports a legal entity.”
Russell v. O’Donnell,
Fleming argues correctly that, as a natural person, suit may be brought in her name. However, since she seeks to recover in the name of Betty Fleming upon promissory notes made payable to “GBM Corporation,” she is subject first to the general rule governing suits on contracts: “[A]n action on a contract, . . . shall be brought in the name of the party in whom the legal interest in the contract is vested. . . .” OCGA § 9-2-20 (a). At common law, a suit on a promissory note could be maintained only in the name of the original payee or a transferee by written assignment. See
Allen v. Commercial Credit Co.,
Judgment reversed.