It,is сonceded that there is no such corporation in existence as Grannis Bros., Inc. Therefore, the real question posed is whether service on C. K. Grannis, described in the summons as an officer of the *719 nonexistent corporation, is service on him as a member of tbe partnеrship of E. W. Grannis Co.
We
have carefully considered the case of
Plemmons v. Improvement Company,
As a general rule courts are more reluctant to .permit an- amendment -.to process or pleadings to change the description of a party .from, an individual or partnership to a corporation, than they, at.e ,-.to/change .-the description of a party as a corporation to. an individual or- partnership. The .reason for this is due to the prescribed statutory -method; of. -.serving process on corporations.
Plemmons v. Southern Improvement Co., supra; Hatch v. R. R.,
Under the comprehensive power to аmend prooess-and-pleadings, where the proper party is before the court, although under a wrong.name-, -an amendment will be allоwed to cure the misnomer.
Lane v. Seaboard and Roanoke R. R. Co.,
It seems to be the general rule that where-individuals are doing business as partners under a firm name and such firm is described or designated -.in an action, as a corporation, and the process -is served .on,.a; member of ¡the partnership, the members of-thе partnership may1 be ¡substituted -by amending the process and .allowing the. pleadings to be. amended. Key
v. Goodall B. & Co.,
We do not think, however, the plaintiff in this cаse is in position to invoke the general rule, since the appellants were not sued as a corporation under their firm' name. The nоnexistent corporation was described as “Grannis Bros., Inc.,” while' these appellants at all times referred to in the- complaint, have traded under the firm name of “E. W. Grannis Co.”
Consequently, in our opinion, the plaintiff is not entitled to have the partnership substituted as the defendant in lieu of the corporation under the theory or doctrine of misnomer. Substitution in the ease of a misnomer, is not considered substitution of new parties, but a correction in the description of the party or parties actually served. However, according to the record, the plaintiff has never moved to amend the process so as to make these appellants parties to the action by substitution or othеrwise:'
It will be noted that when the appellants entered a special appearance and moved to dismiss the action for lack of service on them, the court denied the motion and held that by reason of the general appearance made as hеreinbefore set out, the defendants are in court and amenable to its'judgment.
We do not think the general appearance made on behalf of the purported corporation can be construed as a general appearance on behalf of a partnership, none of whose members was a party to the action, and against whom no cause of action was or has beеn stated.
Moreover, the court did not amend the process and direct that the appellants be substituted as defendants in lieu of the nonexistent corporation, or that C. K. Grannis be made a party defendant. The court merely ordered that the plaintiff he allowed 30 days from the rising of the court to amend its pleadings, making the appellants parties defendant, without additional service of summons upon K. Sloan and Mary S. McCloud.
It is apparent from the record and briefs filed herein that unless the plaintiff can hold these appellants as parties by reаson of the service of the-alias summons on C. K. Grannis, or by reason of the general appearance made by some undisclosed party in behalf of the purported hut non *721 •existent corporation named as defendant, tbe plaintiff’s claim was barred by tbe three year statute of limitаtions more three months prior to the hearing below.
It is said in 54 C.J.S., Limitations of Actions, 317: “For limitation purposes, an amendment substituting a new defendant is regаrded as the •commencement of a new action or proceeding against such defendant, .and does not relate back to thе commencement of the original action, where a new cause of action is set up by the amendment, or the original defendant was dead or otherwise nonexistent at the time of the attempted commencement of the action and therefore no actiоn was commenced against anyone prior to the amendment, or the suit has abated as to the original sole defendant, or the cаse is one of a mistake as to the identity, rather than a misnomer, of the person liable.”
It is conceded that the designated defendant at the time the action was instituted, and the pleadings were filed, was and still is nonexistent. In such an instance the statute of limitations will not cease to run until the process is amended or proper parties are brought in and made defendants. No attempt on the part of the plaintiff, in sо far as the record discloses, has been made to amend the original process or to make the appellants parties defendant, although the correct firm name and the names of the members thereof, were disclosed to the court on 19 February, 1949. Apparеntly the plaintiff has relied altogether on the general appearance set forth herein and the service of the
alias
summons on O. F. Grannis, to sustain the cause of action against these appellants. The appellants entered a special appearаnce on 19 February, 1949, and moved to dismiss the action for want of jurisdiction. The motion was not heard until 11 October, 1949. In the meantime no motion was lodgеd by the plaintiffs to amend the process, or the pleadings, or to make O. K. Grannis, who had been served with summons, a party to the action. Henсe, we think, upon the facts disclosed by the record, the motion to dismiss should have been granted.
Town of Wendell v. Scarboro,
The ruling of the court below is reversed and the action is dismissed.
Reversed.