McCall v. Kliros, 45 S.E.2d 72

McCall v. Kliros

45 S.E.2d 72 | Ga. Ct. App. | 1947

A judgment rendered against a person in his assumed or trade name is not void. Eslinger v. Herndon, 158 Ga. 823 (124 S.E. 169). A judgment against one in an assumed or trade name is a judgment against him as an individual. Becker v. Truitt, 170 Ga. 757 (154 S.E. 262); Newsome v. Reynolds Chevrolet Co., 43 Ga. App. 376 *90 (158 S.E. 763). A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until such judgment shall be reversed or set aside. Code, § 110-501. Where a judgment is rendered against "College Tavern," and the return of service stated, "I have this day served Summons of Garnishment ... on College Park Tavern by serving same on Mrs. Helen McCall its ____ and personally in charge of the office and place of business at the time of service," it will be presumed, in view of the judgment, that the original summons was directed to "College Tavern" and that the entry of service on "College Park Tavern" was merely a misnomer and cured by the judgment (Merchants Grocery Co. v. Albany Hardware c. Supply Co., 44 Ga. App. 112, 160 S.E. 658), and in such a case an allowance of amendments to the judgment and the entry of service so as to make the judgment read, "Mrs. Helen McCall, trading as College Tavern," and the entry of service to read likewise was harmless, even where the amendments were allowed at a term subsequently to that at which the judgment was rendered, in the absence of a showing by the garnishee that the judgment was void by reason of the original summons of garnishment not having been directed to her in her trade name and served upon her personally.

The court did not err in any of the rulings complained of.

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

DECIDED NOVEMBER 1, 1947. Based on an affidavit and bond a summons of garnishment issued. The return of service by the officer was as follows: "I have this day served summons of garnishment issued upon within affidavit and bond on College Park Tavern by serving same on Mrs. Helen McCall its ____ and personally in charge of the office and place of business at the time of service of said garnishee in City of Atlanta." No answer was filed by the garnishee and judgment was rendered against "College Tavern" on March 18, 1947. Execution issued in favor of Majestic Food Stores against Mrs. Helen McCall, trading as College Tavern, and the same was levied upon property as that of Mrs. Helen P. McCall. Whereupon Mrs. McCall filed an affidavit of illegality on April 2, 1947, upon the grounds that the execution named a party different from the one in the judgment and that Mrs. McCall had never been served with a summons of garnishment in the case. On April 4, 1947, the plaintiff in execution moved to amend the judgment against the garnishee and the entry of *91 the officer serving the writ. The motion alleged that the summons of garnishment was directed to College Tavern, Mrs. Helen McCall, proprietor, and that it was served on Mrs. Helen McCall and entry of service made as shown above; that no answer was filed by the garnishee and judgment was rendered against College Tavern; that execution was issued against Mrs. Helen McCall, trading as College Tavern. The court granted the motion to amend "subject to demurrer," and provided for service of the order granting the motion on the garnishee's attorney. The judgment and return of service were amended as provided in said order. Exceptions pendente lite were filed to the order allowing the amendments on the ground that it was granted ex parte; that the court was without jurisdiction because the term had expired at which the judgment was rendered. The garnishee made a motion to vacate the judgment allowing the amendments, which was overruled. The court after hearing evidence passed an order denying the illegality. The garnishee filed a motion for a new trial on the general grounds, which was overruled. The garnishee excepts to all of the orders above.