Jones v. . Vanstory
157 S.E. 867
N.C.
1931
Check Treatment
Bbogden, J.

If certain individuals are sued as trustees, and thereafter, upon motion, a corpоration 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 considerеd 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 pоwer to make it. But it is not an amendment. The effect of the order is to make, and not to amend, this process. Ve 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 sоmething which exceeds an amendment, in the broadest signification in which the word has ever been used.” O. 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 reasоn 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 offiсers 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 namеd “A. H. Bronson, president of the Southern Improvement Company,” and service was duly madе. 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 *585 without service of process.” Again in Hester v. Mullen, 107 N. C., 724, tbе Court wrote as follows: “Only sucb amendments as to parties or tbe cause of tbe аction may be made as its nature and scope warranted. Amendments in tbis respect must be sucb, and only sucb, as are necessary to promote tbe completiоn of tbe action begun.”

It is generally accepted tbat no amendment will lie ‍​‌​​​​‌‌​​‌​​​‌​​​​​‌‌‌​‌‌​‌​‌​​‌‌​‌‌​​​​​​‌​‌​​‍wbicb substantially changes tbe 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 tbe case at bar tbe complаint alleged a cause of action against tbe individual defendants as “trustees,” and hence no cause of action was set up against tbe corporation. Tbe corporation was first mentioned in tbe motion to make an additional party wbiсb was filed 12 October, 1929, and tbis motion did not contemplate an additional-party for thе- purpose of completing an action already begun, but to substitute a party, to be held solely and exclusively liable for tbe claim of plaintiff. Tbis constituted a new аction so far as tbe corporate defendant was concerned. Davis v. R. R., ante, 345.

Tbe -еvidence tended to show tbat tbe insurance company paid tbe money to tbe corporate defendant on 13 September, 1926. Consequently tbe plaintiff’s cause of action accrued on said date. Tbe motion to bring tbe corporation into court was made on 12 October, 1929, and tbe summons ‍​‌​​​​‌‌​​‌​​​‌​​​​​‌‌‌​‌‌​‌​‌​​‌‌​‌‌​​​​​​‌​‌​​‍was served on 6 December, 1929. Either date was more than three years from tbe accrual of tbe cause of action. Tbe trial judge instructed tbe jury, as a matter of law, to answer tbe first issue “No.” Tbis instruction was erroneous under tbe circumstances disclosed by tbe record.

Plaintiff relies upon tbe case of Fountain v. Pitt, 171 N. C., 113. In tbat case tbe Cоurt said: “While tbe process ran against tbe board, it is apparent from it, and from the pleadings, as we have shown, that tbe suit was in reality against tbe county, and in tbe body of tbe сomplaint tbe defendant is designated as Tbe county of Pitt.’ ” It cannot be said tbat tbe original suit in tbe case at bar was in reality against tbe corporation. Furthermore, tbe statute with reference to suits against county commissioners has no bearing upon suits against private corporations, as sucb are governed by other statutory provisions.

New trial.