Opinion
72843.
DECIDED SEPTEMBER 2, 1986.
Dispossessory action. Fulton State Court. Before Judge Lambros.
Michael R. Hauptman, for appellant.
Casper S. Whitner, for appellee.
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 S.E.2d 442) (1983). See also OCGA § 9-11-9 (a). 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 S.E.2d 742) (1983). Moreover, "`[o]bjections 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 S.E.2d 255) (1940).
Judgment affirmed. Birdsong, P. J., and Sognier, J., concur.