Opinion
37410.
DECIDED NOVEMBER 13, 1958.
Action on account. Augusta Municipal Court. Before Judge Cooper. August 28, 1958.
Congdon, Holley Smith, Donald D. Smith, for plaintiff in error.
Boller Yow, D. Field Yow, contra.
Where a proceeding is commenced in the name of the Mortemoth Company, and in response to a demurrer the plaintiff amends the petition by alleging that the "plaintiff is a sole proprietorship fully owned by Louis A. Berkoff," such amendment is sufficient to withstand a motion to dismiss on the ground that there is no party plaintiff.
DECIDED NOVEMBER 13, 1958.
The Mortemoth Company brought suit against the Southeastern Fur Company, a corporation.
Paragraph 2 of the petition alleges that the defendant was indebted to the plaintiff in the amount of $336.25 on an open account, a sworn statement of same being attached as an exhibit. Paragraph 3 alleges that the account was past due and unpaid, that demand was made and payment refused.
The defendant demurred specially to the petition, in paragraph 1 of its demurrer alleging that the petition failed to show whether the plaintiff was a corporation or a partnership. Paragraph 2 demurs specially for that it is alleged that the petition fails to show whether or not the plaintiff was a resident of the State of Georgia.
By amendment the plaintiff added a paragraph which alleges that he is sole proprietor and that the plaintiff company is fully owned by Louis A. Berkoff, a resident of the State of Wisconsin. The defendant then made a motion to dismiss the petition on the ground that it affirmatively appears from the face of the petition as amended that the Mortemoth Company is not the name of any individual, natural, artificial, or quasi-artificial and that for this reason there is no party plaintiff. Upon hearing, the judge sustained the motion and dismissed the petition. On this order error is assigned here.
A plaintiff's name ending in the word "company" imports a legal entity and thus will support an amendment showing the status of such plaintiff, although a name not purporting a legal entity, such as "Dalton Marble Works" does not contain enough to amend by. Western Atlantic R. Co. v. Dalton Marble Works, 122 Ga. 774 ( 50 S.E. 978). It is well settled that a suit naming the plaintiff as "The Blank Company" may always be amended to read that the plaintiff is "John Doe doing business as the Blank Company." See Johnson Johnson Construction Co. v. Pioneer Neon Supply Co., 96 Ga. App. 867 ( 101 S.E.2d 918) and citations, and Mauldin v. Stogner, 75 Ga. App. 663 (2) ( 44 S.E.2d 274). It is contended, however, that the amendment here, which did not read, "Plaintiff is Louis A. Berkoff doing business as the Mortemoth Company" but instead said that "plaintiff [the Mortemoth Company] is a sole proprietorship fully owned by Louis A. Berkoff" is insufficient to constitute Louis A. Berkoff as the true plaintiff in the case. Under the authority of Hudgins Contracting Co. v. Redmond, 178 Ga. 317 (2) ( 173 S.E. 135) and Williamson v. Gentry, 44 Ga. App. 596 (1) ( 162 S.E. 395), this contention is without merit. The latter case states: "A person doing business under a trade name may bring suit in that name as his trade name." In the former case, an action by "W. J. Redmond Company" was allowed to be amended, in response to a demurrer on the ground that it could not be ascertained whether the plaintiff was an individual, corporation or partnership, by the allegation that "W. J. Redmond Co. is a trade name under which W. J. Redmond does business," and the decision states: "A petition brought in the trade name of an individual may be amended by stating the real or true name of the person who purports to carry on the business to which the allegations of the petition relate; and the amendment does not state a new cause of action or introduce a new party." It must therefore be concluded that while one who brings an action in the name of "The Blank Company" may always amend to state that the petition is that of "John Doe doing business as the Blank Company," he may also amend by leaving "The Blank Company" as plaintiff and reciting that this is a trade name under which he, Joe Doe, does business. There is no substantial difference between such an amendment, and an amendment setting up that The Blank Company is a sole proprietorship fully owned by John Doe. All three allegations mean the same thing, that is, that the business is being operated by the individual under the stated trade name. In Charles v. Valdosta Foundry c. Co., 4 Ga. App. 733 ( 62 S.E. 493) an amendment to a petition brought by Valdosta Foundry Machine Company, adding the descriptive words, "the same being a trade name under which E. L. Thomas does business" was permitted, and the court stated: "An individual who is doing business in a trade name can, in such trade name, sue and be sued, especially where the suit relates to the business conducted in that name." It is obvious that if Louis A. Berkoff is the entire owner and sole proprietor of the Mortemoth Company he is doing business in the trade name of the Mortemoth Company. Since an amendment showing such facts is permissible, the trial court erred in sustaining the motion to dismiss the action.
Judgment reversed. Townsend and Carlisle, JJ., concur.