Robinson v. Reward Ceramic Color Manufacturing, Inc.

170 S.E.2d 724, 120 Ga. App. 380, 1969 Ga. App. LEXIS 785
CourtCourt of Appeals of Georgia
DecidedSeptember 2, 1969
Docket44582
StatusPublished
Cited by20 cases

This text of 170 S.E.2d 724 (Robinson v. Reward Ceramic Color Manufacturing, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robinson v. Reward Ceramic Color Manufacturing, Inc., 170 S.E.2d 724, 120 Ga. App. 380, 1969 Ga. App. LEXIS 785 (Ga. Ct. App. 1969).

Opinions

Eberhardt, Judge.

Reward Ceramic Color Mfg., Inc. brought suit on open account against Mrs. Jacqueline Adams Robinson, a/k/a Mrs. Jacqueline R. Adams, a/k/a Mrs. R. E. Adams, individually and trading and doing business as Jacqueline Lea Studio. Upon trial before the judge without a jury Reward secured a judgment in the amount sued for,, and defendant appeals from the judgment and the order overruling her motion for new trial as amended. Held:

1. Defendant filed a motion to dismiss the complaint and to strike Exhibit A and each and every invoice, statement, or document thereof on the grounds that the invoices and statements show upon their faces that they are obligations of Jacqueline Lea Studio, Inc., a corporation, and not of defendant individually or doing business as a proprietorship. Similar oral motions were made at the trial. These motions are without merit. While it is pointed out that three of the invoices were billed to Jacqueline Lea Studio, Inc., the majority are billed to Jacqueline Lea Studio, the proprietorship. Attached to the petition is an application for a Reward distributorship showing the business name as Jacqueline Lea Studio, 1370 Lawrenceville Highway, Decatur, Georgia, and the owner’s name is stated as Mrs. Jacqueline R. Adams (R. E.) The application is signed by Jacqueline R. Adams (Mrs. R. E.) and among the credit references are bank accounts in the names of Jacqueline Lea Studio and Mrs. R. E. Adams. While the invoices billed to the corporation may have been subject to motion (see Gilham v. Stamm & Co., 117 Ga. App. 846 (162 SE2d 248)), the remainder billed to the proprietorship obviously were not, and the wholesale or en bloc attack made by the motions must fail. It is a truism by now that under the CPA a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of [381]*381the claim. And citation of authority is also unnecessary for the proposition that a wholesale objection attacking as a group several paragraphs or exhibits of a complaint is insufficient if any of the paragraphs or exhibits are not subject to the criticism made. The motion to strike and ground 2 of the motion to dismiss were properly overruled, and enumerations of error 2,11 and 41 are without merit.

2. The motion to dismiss contained the further ground that “the complaint does not show that plaintiff is a legal entity with any standing to sue.”

The complaint was brought in the form prescribed in Code Ann. § 81A-304. Plaintiff is shown in the caption as Reward Color Mfg., Inc., whereas the invoices attached as exhibits show the creditor to be Reward Color Mfrs., Inc. It is contended that the plaintiff as shown in the caption was not the real party at interest and thus, under Code Ann. § 81A-117(a) was not entitled to proceed with the action. This contention is not meritorious.

It is obvious that this variance in the name is no more than a clerical error or a misnomer which, under Code § 81-1206, might have been corrected instanter. The variance is not substantial, and since it does not appear from the evidence or otherwise that the names are of two separate corporations, denial of the motion did not result in reversible error. See Orr Stationery Co. v. Dr. Bell & Lee Drug Co., 4 Ga. App. 702 (62 SE 471); Atlantic C. L. R. Co. v. Cook, 6 Ga. App. 128 (64 SE 666); Henderson v. Hackney, 23 Ga. 383 (68 AD 529); Thompson v. Hall & Long, 67 Ga. 627; Ansley v. Green, 82 Ga. 181 (3) (7 SE 921); Chattanooga, Rome &c. R. Co. v. Jackson, 86 Ga. 676 (1) (13 SE 109); Hicks v. Ivey, 99 Ga. 648 (26 SE 68); Palatine Ins. Co. v. Dickerson, 116 Ga. 794 (43 SE 52); Rhodes v. City of Louisville, 121 Ga. 551 (49 SE 681); Parramore v. Alexander, 132 Ga. 642 (2) (64 SE 660); Ramsey v. Mingledorff, 181 Ga. 803 (184 SE 322). “Judicial notice will be taken of the ordinary and commonly used abbreviations and equivalents of Christian names” (Goodell v. Hall, 112 Ga. 435, 436 (37 SE 725)), and “[t]he term ‘Christian name,’ is used in the sense of given name, and includes the name given to a corporation . . .” Johnson v. Central R., 74 Ga. 397; Love v. Commercial Credit Co., 64 Ga. App. 18 (12 SE2d 99).

The misnomer of a corporation as a party in pleadings has the [382]*382same effect as does the misnomer of an individual. The court could thus take notice that the abbreviations “Mfg.” and “Mfrs.” as used here referred to one and the same corporation. “What was involved was, at most, a mere misnomer that injured no one, and there is no reason why it should not have been corrected by amendment.” United States v. A. H. Fischer Lumber Co., 162 F2d 872, 874.

Facility of amendment in this respect under the CPA, Code Ann. § 81A-104(h) is no less than under Code § 81-1206. And since it was an insubstantial but amendable defect which could not injure the defendant, the matter was cured by the verdict and judgment. “The misnomer in the present case, when considered in connection with the bill of particulars, was slight, and could not possibly have been misleading . . . The defendant knew who the real creditor was, if any, and it was unnecessary and unjust that the real creditor should have been delayed in the collection of his debt by a misnomer which was patent to the debtor.” Orr Stationery Co. v. Dr. Bell •& Lee Drug Co., 4 Ga. App. 702, 704, supra.

Prior to the adoption of the CPA this matter was properly raised by a plea in abatement, or possibly by special demurrer, but these have been abolished by § 81A-107, and a motion to dismiss is now the proper vehicle for raising the issue. United States v. A. H. Fischer Lumber Co., 162 F2d 872 (5), supra. Any error in not requiring plaintiff to amend and correct the defect before overruling the motion to dismiss was harmless here.

3. There was no error in overruling defendant’s motion for a more definite statement. Attached to the complaint as exhibits were various statements, invoices, etc., showing materials ordered and the status of the account, and we cannot say that the complaint with its exhibits was so vague or ambiguous that defendant could not reasonably be required to frame a proper responsive pleading. CPA § 12(e) (Code Ann. § 81A-112(e)). Enumeration of error 3 is without merit.

4. In support of the enumerations attacking the overruling of the motion for directed verdict, the judgment on the verdict, and the overruling of the motion for new trial on the general grounds, it is argued that the evidence shows that none of the obligations sued upon were incurred by Mrs. Adams (Robinson) but were corporate debts. However, there is ample evidence that Mrs. Adams started the business in 1963 [383]*383under the name of Jacqueline Lea Studio,'Mrs. Adams financing the undertaking and her daughter Marylea doing the work. Mrs. Adams was desirous of obtaining a Reward distributorship and made application for it as indicated in Division 1, supra, and, upon the strength of the application, including her credit references, and her payment to Reward of $1,000, the distributorship for Reward’s products was granted to her. Plaintiff relied upon Mrs. Adams’ credit and looked to her for payment for materials ordered. In February, 1964, Biemann Martin, Mary lea’s husband, joined the business, and in July, 1964, the business was incorporated with Mrs.

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Robinson v. Reward Ceramic Color Manufacturing, Inc.
170 S.E.2d 724 (Court of Appeals of Georgia, 1969)

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Bluebook (online)
170 S.E.2d 724, 120 Ga. App. 380, 1969 Ga. App. LEXIS 785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-reward-ceramic-color-manufacturing-inc-gactapp-1969.