If certain individuals are sued as trustees, and thereafter, upon motion, a corporation in which said individuals are directors, is duly made a party to the suit, does the making of such corporation a party, constitute an amendment or a new action?
The Revised Code of 1854 provided for amendments to process or pleadings "for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered thereon." This original provision has gradually been broadened into C. S., 547. This Court considered the nature of an amendment in Camlin v. Barnes, 50 N.C. 296. The Court said: "So, if this be an amendment, the court has power to make it. But it is not an amendment. The effect of the order is to make, and not to amend, this process. We put our decision on the ground, that whenever it is necessary to issue new process to bring in a new defendant, the operation amounts to something which exceeds an amendment, in the broadest signification in which the word has ever been used." C. S., 475, provides that a civil action shall be commenced by the issuance of a summons. The summons against the corporate defendant was issued ........ day of December, 1929, and served on 6 December, 1929. If the corporation was in court by reason of the summons served upon certain individuals denominated "trustees" of the Masonic and Eastern Star Home, then it was wholly unnecessary to issue new process for the corporation.
But was the corporation in court prior to 6 December, 1929? The statute, C. S., 483, prescribes the method by which a private corporation shall be brought into court. Construing this statute in Hatch v. R. R., 183 N.C. 617, it was declared: "The summons must be served on a corporation by the delivery of a copy thereof to one of certain designated officers or to a local agent (C. S., 483); and this requirement, it is held, must be strictly observed." In Plemmons v. Improvement Co., 108 N.C. 615, the summons named "A.H. Bronson, president of the Southern Improvement Company," and service was duly made. This Court held that this was a service upon A.H. Bronson individually, and "was not a service upon the corporation, and it cannot, in this shorthand manner by amendment, be brought into court
without service of process." Again in Hester v. Mullen, 107 N.C. 724, the Court wrote as follows: "Only such amendments as to parties or the cause of the action may be made as its nature and scope warranted. Amendments in this respect must be such, and only such, as are necessary to promote the completion of the action begun."
It is generally accepted that no amendment will lie which substantially changes the cause of action. Merrill v. Merrill, 92 N.C. 657; Campbell v.Power Co., 166 N.C. 488; Hill v. R. R., 195 N.C. 605; Gibbs v. Mills,198 N.C. 417; McIntosh North Carolina Practice and Procedure, 512-517.
In the case at bar the complaint alleged a cause of action against the individual defendants as "trustees," and hence no cause of action was set up against the corporation. The corporation was first mentioned in the motion to make an additional party which was filed 12 October, 1929, and this motion did not contemplate an additional party for the purpose of completing an action already begun, but to substitute a party, to be held solely and exclusively liable for the claim of plaintiff. This constituted a new action so far as the corporate defendant was concerned. Davis v. R.R., ante, 345.
The evidence tended to show that the insurance company paid the money to the corporate defendant on 13 September, 1926. Consequently the plaintiff's cause of action accrued on said date. The motion to bring the corporation into court was made on 12 October, 1929, and the summons was served on 6 December, 1929. Either date was more than three years from the accrual of the cause of action. The trial judge instructed the jury, as a matter of law, to answer the first issue "No." This instruction was erroneous under the circumstances disclosed by the record.
Plaintiff relies upon the case of Fountain v. Pitt, 171 N.C. 113. In that case the Court said: "While the process ran against the board, it is apparent from it, and from the pleadings, as we have shown, that the suit was in reality against the county, and in the body of the complaint the defendant is designated as `the county of Pitt.'" It cannot be said that the original suit in the case at bar was in reality against the corporation. Furthermore, the statute with reference to suits against county commissioners has no bearing upon suits against private corporations, as such are governed by other statutory provisions.
New trial.