dissenting. I cannot concur in the opinion and judgment of the majority. I cannot consent to hold that a defendant can be held as. well under any other name as under his own. The cases cited in the opinion of the majority, and especially that of Clark v. Wyche, 126 Ga. 24, are based upon the principle of estoppel. They are cases in which a plaintiff sued under an assumed name, and then attempted to avoid a judgment obtained by the defendant on a plea of set-off. Of course in that instance, as properly held in the case of Clark v. Wyche, under common principles of justice the plaintiff was estopped to deny the name which he himself had assumed in the litigation. All the cases cited are cases of plaintiffs. The case before us is one of a defendant, and I esteem it to be well settled that a court cannot have jurisdiction of any defendant except in one of three capacities, — either as a natural person, an artificial person such as a corporation, or a quasi-artificial person such as a partnership. There would be no value in a name and no method of establishing the identity of a person against whom a judgment may be sought *829to be obtained, if any other name would do for a defendant. In law a rose by any other name would not smell as sweet. Granting that a defendant may be sued in his trade-name, still his real name must appear, followed by his trade-name under which he does business; or at least this has been the uniform practice in such instances. I consider the ruling in this case absolutely controlled by the decision of this court in Western & Atlantic R. Co. v. Dalton Marble Works, 122 Ga. 774, in which Mr. Chief Justice Simmons draws the distinction between cases of estoppel by the plaintiff using a name of his selection and the ever-essential right of the defendant to be sued in a name which imports without question either an individual, a corporation, or a partnership. See also Hill v. Armour Fertilizer Works, 14 Ga. App. 106, and citations. One of the decisions'upon which the opinion of the majority is based was by four Justices, and another was by five. But in a full-bench case, Anderson v. Brumby, 115 Ga. 644, 649, it was said: “This court is fully committed to the proposition that no suit can be lawfully prosecuted save in the name of a plaintiff having a legal entity, either as a natural or as an artificial person.” As said in Western & Atlantic R. Co. v. Dalton Marble Works, supra: “In every suit brought in this State there must be a real plaintiff and a real defendant. The plaintiff or the defendant may be a natural or an artificial person, or a quasi-artificial person, such as a partnership. If the suit is brought in a name which is neither that of a natural person, a' corporation, nor a partnership, it is a mere nullity.” Conversely, a suit brought against a defendant in “a name which is neither that of a natural person, a corporation, nor a partnership, is a mere nullity.” I think the majority of the court have confused the idea of estoppel in the Clark case, supra, which arose from the conduct of the plaintiff in that case in suing under an assumed name, with an assumed estoppel against the defendant in this case because he was handed a summons of garnishment directed in the name in which he conducted his business. Unlike the plaintiff in the Clark case, he is not estopped, in my opinion, by reason of the circumstance to which I have referred, to assert his right to be brought into court in the usual manner and to be told that he was the defendant who was being sued, although the suit might be brought against him as trading under the name of Herndon Motor Company.
*830I think there was equity in the bill, because it is well settled that no one but the defendant in fi. fa. can file an illegality; and if by any reason he could be held as Herndon Motor Company, E. 0. Herndon was certainly not the defendant in fi. fa. See Artope v. Barker, 72 Ga. 186; State v. Sallade, 111 Ga. 700 (36 S. E. 922); City of Atlanta v. Seaboard Air-Line Railway, 137 Ga. 805 (74 S. E. 268); Georgia Railway & Electric Co. v. City of Atlanta, 144 Ga. 722 (87 S. E. 1058). As said by Mr. Justice Hill in City of Atlanta v. Seaboard Air-Line Railway, supra, “nobody but the defendant in execution can file an affidavit of illegality — a third person cannot interpose an illegality.” If indeed, as argued by the majority, E. 0. Herndon and Herndon Motor Company are to all intents and purposes the same, and the phrase “Herndon Motor Company” indubitably refers to E. 0. Herndon, it does not seem to me that it would follow that there would be a remedy by claim; for the right of a defendant in fi. fa. to appear as a claimant and thereby relieve himself from a valid judgment against his property is as yet unheard of.