16 A.2d 373 | Pa. | 1940
Massachusetts Bonding and Insurance Company executed a bond to United Societies of Greek Catholic Religion of the United States of America, a fraternal organization, to indemnify it against loss sustained through embezzlements or other acts of dishonesty on the part of its officers. The United Societies brought this action against its supreme treasurer, George Klochak, Jr. and Massachusetts Bonding and Insurance Company to recover a loss resulting from alleged defalcations committed by Klochak. The Bonding Company filed an affidavit of defense raising the question of law that there was a misjoinder of parties defendant in that entirely separate and distinct causes of action were alleged against them, one being against Klochak because of his embezzlements and the other against the *161 Bonding Company on its written contract of indemnity. The court sustained the statutory demurrer "without prejudice to the plaintiff to bring such proper actions as it may see fit." Plaintiff thereupon filed a petition for leave to discontinue as to Klochak, to strike his name from the caption of the case, and to amend the statement by deleting the claim for judgment against him. This petition was dismissed.
The court's action was doubtless an inadvertence. When a demurrer to a statement of claim is sustained, the court must give plaintiff an opportunity to amend unless it is clear that the error cannot be cured: Seitz, Trustee, v. Fulton NationalBank,
The discontinuance as to Klochak did not involve the introduction of a new cause of action against the Bonding Company. The latter's position became in effect the same as though a separate action had been brought against it in the beginning, and it could not be harmed in any way, from a legal point of view, by the allowance of the proposed amendment.
The order of the court below refusing plaintiff's petition is reversed with a procedendo.