108 Ill. 514 | Ill. | 1884
delivered the opinion of the Court:
This action was originally brought by Clara Ludwig in her own right, and as guardian of two minor assignees of the policies on which the action was commenced, against the United States Life Insurance Company. The judgment rendered in the trial court in favor of the original plaintiff-, was afterwards reversed in this court because the suit was improperly brought in the names of the assignees of the policies. (United States Life Ins. Co. v. Ludwig, 103 Ill. 305.) After the reversal of that judgment Otto Ludwig was appointed administrator of the estate of Otto C. Ludwig, deceased,—the assured named in the several policies, and to whose administrators or executors the losses wrere made payable. After the remandment of the cause to the trial court, on leave given by the court for that purpose, Otto Ludwig, the administrator, was substituted for the former plaintiff. An additional count was then filed by way of an amendment to the declaration, on precisely the same cause of action as in the original declaration, making the usual profert of letters of administration. To the declaration as amended defendant filed the general issue, and also some special pleas, to which a demurrer was sustained. On the trial in the Superior Court plaintiff recovered a judgment for the full amount of the policies on which the action was brought. That judgment was affirmed in the Appellate Court for the First District, and defendant brings tbe case to this court on its further appeal.
No defence is insisted on as to the merits of the action. It' is claimed the action is barred as against the present plaintiff by the limitation clause contained in the policies declared on, which are to the effect no suit against the company under the insurance contract shall be brought, or action commenced, “after eighteen months after” the death of the assured. It appears from the evidence the assured died July 31, 1880; that the proofs of loss were furnished the company on the 26th of August, 1880, and that the order of the court allowing the amendment, by which the administrator of the assured was substituted as plaintiff instead of the assignees of the policies, was not made until the 20th day of September, 1882. A period of more than two years from the date of the death of the assured had then elapsed, and that, it is said, in the language of the policies, will be “conclusive evidence” against the claims.
The original suit brought by the assignees of the policies was commenced January 5, 1881. That was within the time prescribed in the limitation clause of the policies in which the action might be brought. It will be seen the error in the . argument submitted on behalf of defendant lies in the assumption the amendment making the administrator plaintiff, instead of the assignees of the policies, was in effect commencing a new action, so far as the present plaintiff is concerned, and as that was not done within-eighteen months next after the death of the assured, it is said the action is barred. That the amendment substituting the administrator of the assured as plaintiff was authorized by section 1, chapter 7, of the Revised Statutes of 1871, which permits amendments in any process or proceeding in any civil action, either in form or in substance, for the furtherance of justice, is settled by the decision of this court in Teutonia Life Ins. Co. v. Mueller, 77 Ill. 22, and in other more recent cases. The reasoning in that case is conclusive of the one at bar, and the propriety of the amendment need not be further discussed. As was there said, under the liberal provisions of this statute any amendment in civil actions, either in form or in substance, is permissible, that tends to the furtherance of justice. The amendment allowed in the case being considered, as well as the amendment in the case cited, was simply to substitute the real party having the right to sue, as plaintiff. Clearly that was within the discretion of the court, to enable the parties “to sustain the action for the claim for which it was intended to be brought. ” Substituting the party having the legal right to sue for the claim for which the action was brought, instead of another party improperly named as plaintiff, is in no sense commencing a new action against defendant. So far as the defendant is concerned, this suit or action was commenced against it at the time of the issuing and the service of the summons, which was within eighteen months after the death of the assured. (Chicago and Northwestern Ry. Co. v. Jenkins, 103 Ill. 588.) The assignees in whose names the action was originally commenced, are the parties beneficially interested in this judgment, and the amendment substituting the administrator, in whom was the legal right to sue, as plaintiff, was simply to enable them “to sustain the action for the claim for which it was intended to be brought, ” and nothing more.
The additional count, filed after the administrator was substituted as plaintiff, was upon no new cause of action. It was precisely the same cause of action defendant was required to answer by the original summons. Defendant was in court, and it was a matter that could' make no possible difference, so far as it was concerned, whether the judgment was rendered in favor of the parties beneficially interested in the cause of action, or in favor of the party having the legal right to sue, as was done, since the amendment was permitted. It was the same suit and the same claim for which the action was intended to be brought, and the action must be regarded as having been commenced when the original summons was issued, which was in time to save the bar of the limitation clause of the policies as to the time of the commencing the suit or action.
The case of Lusk v. Thatcher, 102 Ill. 60, has no application to the case being considered. Should a new party be made defendant, under the .Practice act he would necessarily have to be brought in by summons, and that would be the commencement of a new suit, so far as he is concerned. But here the party defendant was in court when the amendment to the declaration was made, by virtue of the original summons. No new service was necessary to bring defendant into court, nor was it required by the amendment to answer to any new cause of action.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
