249 N.W. 724 | N.D. | 1933
Tbe sole question involved in tbis case relates to tbe amendment of a summons in a justice’s court. Tbe facts out of wbicb tbe question arises are substantially as follows: Tbe plaintiff, Derek, broug’bt suit in a justice’s court against “B. W. Elder, sole
“At the close of the taking of the testimony in the above entitled action, it appeared from the testimony given by B. W. Elder, named as Defendant, and by W. H. Elder, son of the Defendant, both appearing in Court and being called as witnesses, that the name of the Defendant is not properly designated in the Summons and in the Complaint, and that the Elder Horse Sales Company, a Corporation, has in its possession the property described in Plaintiff’s Complaint, and that B. W. Elder named as Sole Trader in the Summons and in the Complaint is the President and General Manager of the Elder Horse Sales Company, and it further appearing that the Summons and Complaint herein and other papers involved in this action were served upon B. W. Elder, President of the Elder Horse Sales Company, and that the Elder Horse Sales Company is the proper, legal name that should have been used in properly designating the Defendant. The Plaintiff now moves that the Court, pursuant to the provisions of § 7482, amend the title of this action in both the Summons and Complaint so as to correctly designate and name the Defendant herein as the Elder Horse Sales Company, a Corporation, and that the Plaintiff herein be allowed to file an Amended Complaint properly designating the Defendant as the Elder Ilorse Sales Company, a corporation.”
Counsel for Elder thereupon moved that the case he dismissed as against the defendant B. W. Elder for the reason that the evidence conclusively established that there was no liability against the defendant and that the cause of action, if any, was against Elder Horse Sales Company, a corporation; that this corporation was not a party to the action and had not been served with summons or other process and that the court was wholly without jurisdiction over such Elder Horse Sales Company. This motion was made by counsel for the defendant Elder, and there was no appearance whatsoever by anyone in behalf of the Elder Horse Sales Company. The trial court granted plaintiff’s motion to amend and directed that the name of the defendant be changed
“Tbe court may, before or after judgment in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out tbe name of any party; or by correcting- a mistake in tbe name of a party, or a mistake in any other respect; or by inserting other allegations material to tbe pase; or, when tbe amendment does not change substantially tbe claim or defense, by conforming tbe pleading or proceeding to tbe facts proved.”
Tbe plaintiff contends that tbe ruling of the justice of the peace was correct under tbe decisions of this court in Gans v. Beasley, 4 N. D. 140, 59 N. W. 714, and Goldstein v. Peter Fox Sons Co. 22 N. D. 636, 135 N. W. 180, 40 L.R.A.(N.S.) 566. In our opinion these cases do not sustain tbe ruling of tbe justice of tbe peace challenged on this appeal. On tbe contrary, tbe decisions in those cases recognized that a court is without authority to render judgment.in tbe circumstances involved here. In Gans v. Beasley an action was instituted in a district court on a promissory note signed by a firm name, to-wit, W. W. Beasley & Sons. Later an application was made for leave to amend by showing tbe members of tbe co-partnership. In that action there was no substitution of parties; tbe action proceeded against tbe defendants named in tbe original summons. Tbe amendment was made merely to clarify and make certain tbe names of tbe defendants who bad already been sued and served with process. In tbe opinion in that case, after pointing out tbe conditions under which an amendment might be made in tbe name of a party to tbe action and after referring to certain decisions in New York and Michigan, tbe court said :
*638 “We deem further citations unnecessary, as the cases already referred to amply sustain the right to amend, as to the names of parties, in all cases where the amendment does not operate to prejudice the parties, and does operate in furtherance of justice. But the right to amend must he qualified so as to forbid an amendment which effects an actual change of parlies. This limitation is clearly established in the cases cited from Michigan and New York.” Gans v. Beasley, 4 N. D. 153, 59 N. W. 714.
Goldstein v. Peter Fox Sons Co. supra, also, involved the amendment of a summons in an action in a district court. In that case the actual name of the defendant was correctly stated, but it was erroneously stated to be a corporation when, in fact, it was a partnership. Service had been made upon one of the pai’tners. The court held that an amendment of the summons and complaint showing that the defendant was a body corporate instead of a partnership and sued in its corporate capacity did not operate to substitute a new party defendant. In that case the court clearly recognized the limitation pointed out in Gans v. Beasley, namely, that there is no authority on the part of the court under the guise of amendment of the name to substitute a new party defendant for the one actually named and served, and to render judgment against such substituted defendant notwithstanding the fact that no process had been served upon him. In the opinion in that case the court said:
“Defendant will contend that such an amendment is' in reality bringing in new parties to the suit, and, therefore, if permissible, service of summons upon such new parties is necessary, citing thereunder White v. Johnson, 27 Or. 282, 40 Pac. 511, 50 Am. St. Rep. 726, and notes thereto, and similar holdings. If the amendment here permitted amounted to the bringing in of new parties, counsel’s contention would be supported by the weight of authority, but it does not substitute a new for the old party. It merely makes definite the character of the real party sued, the necessity for the knowledge concerning which, besides being proper for the sake of certainty, is that the court may order the appropriate judgment in form and comply with the statute in such respect.” Goldstein v. Peter Fox Sons Co. 22 N. D. 643, 644, 135 N. W. 180, 40 L.R.A.(N.S.) 566.
It will be noted that this court, both in Gans v. Beasley and in Gold-
We are agreed that the justice of the peace was without authority 'to render judgment against the Elder Horse Sales Company. The judgment appealed from is reversed and the cause is remanded with directions that the justice of the peace be ordered to set aside the judgment and dismiss the action.