252 Pa. 568 | Pa. | 1916
Opinion by
Henry Tonge and wife brought suit against The Item Publishing Company to recover compensation for injuries to Mrs. Tonge caused by a runaway horse attached to an “Item” delivery wagon which had been left standing on the street unattended. The summons wqs served at the office of “The Item” in the City of Philadelphia and on the person in charge thereof. An appearance was entered by an attorney for The Item Publishing Company, a plea of not guilty filed, and the trial resulted in verdicts for plaintiffs. New trials were granted which again resulted in verdicts for plaintiffs; these verdicts, however, were set aside owing to an irregularity, and at the third trial verdicts were once more rendered in plaintiffs’ favor, on which judgment was entered and no appeal taken. At the last, and also at the second trial, the. defense was conducted by an attorney acting for the estate of Thomas Fitzgerald. Following the conclusion of the second trial defendant filed an additional plea denying the fact of its incorporation, but this plea, on motion, was stricken off on the ground that the issue raised could be tried under the plea of “not guilty.”
The Item Publishing Company received letters patent as a corporation under the Act of April 29, 1874, P. L. 73, but failed to complete its organization by recording the certificate of incorporation in the. office for recording deeds in Philadelphia County, where it maintained its place of business. The plant and business of “The Item” were owned entirely by Thomas Fitzgerald, who died in 1891, leaving a will in which he requested the business
Under the Act of June 16, 1836, P. L. 784, Section 19, the jurisdiction of the Orphans’ Court extends to the distribution of estates of decedents “among creditors and others interested.” Its powers in this respect extend to the decision of all questions necessary to a proper distribution of the estate within its control: Kittera’s Est., 17 Pa. 416; Dundas’s App., 73 Pa. 474; Otterson v. Gallagher, 88 Pa. 355; Shollenberger’s App., 21 Pa. 337. Under these authorities, if the claim here presented was a debt of the estate there can be no doubt as to the jurisdiction of the Orphans’ Court to pass upon and allow its payment, and it therefore follows that the court has jurisdiction to determine j.n the first place whether or not the claim is a valid debt.
It is admitted that the estate of Thomas Fitzgerald was the real defendant in interest in the action against
It is now contended that to allow appellants’ claim against the Fitzgerald estate will in effect, and contrary to the decisions of this court, permit an amendment by substituting new parties after the statute of limitations has run. It is well settled that an amendment which introduces a new cause of action, or brings in a new party, or changes the capacity in which he is sued, will not be permitted after the statute has run: Wright v. Eureka Tempered Copper Co., 206 Pa. 274, 276, and cases cited; Girardi v. Laquin Lumber Co., 232 Pa. 1. On the other hand, however, statutes permitting amendments are liberally construed to give effect to their intent to prevent a defeat of justice through mere mistake as to parties or form of action. Consequently, if the proper party is actually in court and the effect of the amendment is to correct the name under which he has been sued, an amendment will be allowed: Wright v. Eureka Tempered Copper Co., 206 Pa. 274; and if the right party appears and defends on the merits without
In the present case the Fitzgerald estate, the sole owner of the business of The Item Publishing Company, defended against appellants’ claim on its merits; sued the Casualty Company to recover the judgment obtained against it; transacted business at all times in the name of The Item Publishing Company, under which it was sued, and made no objection for want of proper party during the trial and until after the statute of limitations had run. Under the circumstances, it would be gross injustice to permit such defense to be raised at this time in order to escape liability.
The facts of the case being undisputed, under the power vested in this court by the Act of June 16, 1836, P. L. 784, to hear and determine on the merits all appeals from the Orphans’ Court and decree according to the justice and equity thereof, the decree to the extent that it applies to appellants is reversed and it is directed that the claims of appellants against the Fitzgerald estate be allowed.