80 Fla. 473 | Fla. | 1920
On January 30th, 1918, the appellant filed his hill to remove clouds from title in the Circuit Court for Alachua County against Knickerbocker Trust Company, a corporation, and several other defendants. All the defendants being non-residents of the State of Florida, constructive service by publication was had upon them, the process being returnable on the 4th day of March, 1918. On the return day of the process the following entry of appearance, omitting the venue and style of the case, was filed in the Clerk's office:
“Comes now Columbia • Trust Company, formerly Knickerbocker Trust Company, by its attorneys, Hampton & Hampton, and appears on this 4th day of March, A. D. 1918.
“HAMPTON & HAMPTON, “Attorneys for Columbia Trust Co.” “(Formerly Knickerbocker Trust Co.)”
On the return day of the process the complainant, who is the appellant, filed a praecipe for a decree pro confesso against all defendants who fail to appear, but the Clerk refused to enter a decree pro confesso against Knickerbocker Trust Company, a corporation. The complainant thereupon on March 21st, 1918, filed a motion to the court to enter a decree pro confesso against the Knickerbocker Trust Company for failure to appear, but the Chancellor denied the motion. On the rule day in April, a demurrer to the bill was filed, the introductory paragraph of which is as follows: “Comes now the defendant Columbia Trust Company (formerly Knickerbocker Trust Company) a corporation, by its attorneys, Hampton & Hampton, and files this its separate demurrer to. the complainant’s bill of complaint herein and for cause of demurrer says *
After stating the grounds of demurrer, it was signed by Hampton & Hampton as solicitors for defendant Columbia Trust Company (formerly Knickerbocker Trust Company). On April 5th complainant moved the court to enter a decree pro confesso against ’Knickerbocker Trust Company, a corporation, on the ground that said corporation had failed to appear, plead, answer or demur to the bill, which motion was denied by the Chancellor,
The correct answer to the question which follows, propounded by counsel for complainant, will solve the main issue presented: “Can a person not named as a defendant in a chancery suit appear in that suit, and, by so appearing, prevent the entry of a decree pro mnfesso for failure to appear against one who is named as a defendant in the suit and who failed t'o appear?”
It is true as contended by complainant that as a general rule a complainant in equity cannot be compelled to litigate with a third party not made by him a defendant to the bill, but' the question propounded and the general rule stated have no application to the facts of this case.
It is not apparent that a party not named as a defendant has appeared to the bill. Knickerbocker Trust Company, a corporation, was sued; Columbia Trust Company, in obedience to the court’s process, appears, submits itself to the jurisdiction of the court, and in so doing alleges in substance, by the use of the word “formerly,” that it is the identical corporation sued, formerly known as Knickerbocker Trust Company.
The language used in the entry of appearance signifies merely a change of name of the defendant corporation, but no change of its identity. The change in the name of a corporation has no effect whatever upon its property, rights or liabilities. It continues as before, responsible
If a person is sued and process is served upon him. by a right name it is proper to amend the pleadings so as pear and defend the action, neither is he required to appear by a name not his own; but it is his right and his duty to appear by his correct name. The object of the process of the court is to produce the person, not the name by which he may be sued, in court. Under the old English practice the defendant was required to visibly appear in court, and our method of appearance is only a substitute for the ancient practice. When a person is sued by a wrong name and he submits himself to the jurisdiction of the court by his true name he is not in default and decree pro oonfesso should not be entered against him. See Moore v. Lewis, 76 Mich. 300, 43 N. W. Rep. 11. This rule applies to natural persons and corporations alike. Harvey Lumber Co. v. Herriman & Curd Lumber Co., 39 Mo. App. 214.
If a party is sued by a wrong name and appears by his right name it is proper to amend the pleadings so as to correspond with the name by which he appears. 14-Ency. PL & Pr., p. 297.
It is argued that the motion for decree pro oonfesso on account of failure to appear should have been granted because in entering appearance Columbia Trust Company
The next objection urged by complainant is that if there had been a change in the name of defendant corporation it could not state that fact in the entry of its appearance nor in its demurrer, but the only method by which such fact could be stated wa.s by plea in abatement.
Where a party sued by a wrong name wishes to appear and defend the action on its merit, he cannot be compelled to take advantage of his right to plead in abatement on the ground of the misnomer, but he may waive his right to plead in abatement and by appropriate averments, to show that he is the identical party sued, appear and plead to the merits by his true name. ■
Where a party sued by a wrong name, by appropriate averments to show that he is the identical'party sued, appears and pleads to the merits by his trúe name, a motion for a decree pro confesso for failure to appear by the
Where a motion is grounded on facts that are neither apparent from the face of the record, or papers on file in the case, nor within the judicial knowledge of the court it must be supported by affidavits or other proof. 6 C. J. 635; 126 Am. St. Rep. 30, Note: 20 Standard Proc. 30; Blemel v. Shattuck, 133 Ind. 498, 33 N. E. Rep. 277.
The interlocutory orders appealed from should be affirmed.
Per Curiam. — The record -in this cause having been considered by this court, and the foregoing opinion prepared under Chapter 7837, Acts of 1919, adopted by the court as its opinion, it is considered, ordered and adjudged by the Court that the interlocutory orders herein be, and the same are hereby, affirmed.
