Carroll v. Equico Lessors

141 Ga. App. 279 (1977)

233 S.E.2d 255

CARROLL et al. v. EQUICO LESSORS.

53342.

Court of Appeals of Georgia.

Submitted January 12, 1977.

Decided February 11, 1977.

Wendell C. Lindsey, for appellants.

A. L. Crawley, for appellee.

SHULMAN, Judge.

This is an appeal from the lower court's denial of defendants' motion to set aside the judgment. The motion is predicated upon a claim that the plaintiff, Equico Lessors, is not a legal entity and that a proceeding brought by a plaintiff not a legal entity is a mere nullity. The judgment sought to be set aside was entered by default and with the consent of the parties and the validity of the default and consent thereto is not contested by the defendants.

1. In John L. Hutcheson &c. Hospital v. Oliver, 120 Ga. App. 547 (1) (171 SE2d 649), we held that "A corporation conducting business in a trade name may sue or be sued in the trade name." See Cheek v. J. Allen Couch & Son, 125 Ga. App. 438 (4) (187 SE2d 907). An affidavit filed by the plaintiff in opposition to the motion to set aside shows that Equico Lessors is a trade name. Code Ann. § 81A-160 (d) provides in part that "A motion to set aside must be predicated upon some nonamendable defect which does appear upon the face of the record or pleadings, ..." A misnomer is amendable if it does not result in the substitution or addition of another party. See Powell v. Ferguson Title &c. Co., 125 Ga. App. 683 (1) (188 SE2d 901). "`Where the name does not import a legal entity, but in fact it is a corporation, such defect may be cured by an amendment alleging the corporate character. [Cits.]'" Russell v. O'Donnell, 132 Ga. App. 294, 296 (208 SE2d 107). The basis for the motion to set aside filed by the defendants is not within the purview of Code Ann. § 81A-160 (d).

2. Also dispositive of this appeal is that the defendants did not raise the issue of the legal existence of the plaintiff by specific negative averment in a responsive pleading (Code Ann. § 81A-109 (a); Brannon v. *280 Whisenant, 138 Ga. App. 627 (1) (227 SE2d 91)), and that the defendants consented to the judgment. "An appeal does not lie from a judgment rendered by the consent of the appellant. Portsmouth Cotton Oil Refining Corp. v. Cumming Oil &c. Co., 145 Ga. 159 (88 SE 940); King v. Fitzgerald &c. R. Co., 145 Ga. 164 (88 SE 929); Gresham v. Lyon, 9 Ga. App. 667 (72 SE 66). Consensus tollit errorem. Commercial City Bank v. Sullivan, 18 Ga. App. 608 (5) (90 SE 173)." Patterson v. McFarland, 124 Ga. App. 464 (184 SE2d 230).

Judgment affirmed. Quillian, P. J., and Stolz, J., concur.