Youmans v. Riley Properties

Banke, Chief Judge. This appeal is by the defendant in a dispossessory action from the denial of his motion for new trial: The sole enumeration of error is that the trial court was required to grant the motion because the named plaintiff did not purport to be a legal entity. Held: “Where a party desires to raise an issue as to the capacity or authority of a party to bring an action, he must do so by specific negative averment in his responsive pleadings . . . Otherwise, such defense[ ] [is] deemed waived.” Klorer-Willhardt, Inc. v. Martz, 166 Ga. App. 446, 447 (304 SE2d 442) (1983). See also OCGA § 9-11-9 (a). *177 The effect of this procedural rule is to ensure that the plaintiff will have an opportunity to correct the misnomer by amendment. See generally OCGA §§ 9-11-15 (c); 9-11-17 (a). The former rule that all proceedings are a nullity if the plaintiff named in the original complaint is not a legal entity no longer obtains. See Block v. Voyager Life Ins. Co., 251 Ga. 162 (1) (303 SE2d 742) (1983). Moreover, “ ‘[objections which go to the judgment only, and do not extend to the verdict, cannot properly be made grounds of a motion for new trial.’ ” Smith v. Wood, 189 Ga. 695 (2) (7 SE2d 255) (1940). Decided September 2, 1986. Michael R. Hauptman, for appellant. Casper S. Whitner, for appellee. Judgment affirmed. Birdsong, P. J., and Sognier, J., concur.