Bender v. Penfield
| Decision Date | 19 February 1912 |
| Docket Number | 165 |
| Parties | Bender, Appellant v. Penfield |
| Court | Pennsylvania Supreme Court |
Argued January 4, 1912
Appeal No. 165, Jan. T., 1911, by plaintiffs from order of C.P. No 2, Phila. Co., June T., 1907, No. 815, refusing to take off non-suit in case of Oscar Bender, by his next friend and father, Joseph Bender and Joseph Bender, Individually v. Anne W. Penfield, formerly Anne M. Weightman Walker, Sole Devisee under the last Will and Testament of William Weightman deceased. Affirmed.
Trespass to recover damages for personal injuries. Before WILTBANK, J.
The case turned upon the validity of an amendment, as appears by the opinion of the Supreme Court.
Error assigned was refusal to take off non-suit.
Bernard Harris, for appellants.
Frank P. Prichard, with him James Wilson Bayard, for appellee. -- The amendment was improper: Dearie v. Martin, 78 Pa 55; Garman v. Glass, 197 Pa. 101; Wildermuth v. Long, 196 Pa. 541; Comrey v. East Union Twp., 202 Pa. 442; La Bar v. N.Y. Susq. & West. R.R. Co., 218 Pa. 261; VanCott v. Prentice, 104 N.Y. 45 (10 N.E. Repr. 257); Erskine v. McIlrath, 62 N.W. 1130.
Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.
At the institution of this action process by summons went out against the estate of William Weightman, deceased. It was returned served, but upon whom does not appear. The circumstance is immaterial, since a general appearance for the estate followed. Two years after the action had been begun an amendment was allowed whereby the name of defendant was changed so as to read Anne W. Penfield, formerly Anne M Weightman Walker, surviving executor of the estate of William Weightman, deceased. Later on a rule was made absolute changing the name of defendant to Anne W. Penfield, formerly Anne M. Weightman Walker, sole devisee under the last Will and testament of William Weightman, deceased. To this last amendment exception was taken. The case was proceeded with, resulting in a judgment of non-suit for insufficiency of evidence, which the court refused to take off. From this later order we have this appeal. Were we to concede that plaintiffs' evidence established a prima facie case of negligence, a reversal of the judgment on that point could avail the plaintiffs nothing, and we therefore make no inquiry into that feature of the case. The judgment entered is clearly right for jurisdictional reasons. The amendment by which this appellee was made a defendant in the action, was without authority of law. The action had been brought against the estate of a decedent; the amendment, bringing upon the record the appellee as the legal representative of the estate, was entirely proper; it introduced no new party, since in the event of recovery the judgment would simply be de bonis testatoris; but by the second amendment the appellee, against her protest, was introduced upon the record to defend not in her representative but in her individual capacity, and had judgment been obtained it would have been de bonis propriis. No truer test can be applied in determining whether a proposed amendment involves a change of parties to the action. If it may involve in personal liability one who was not made a party originally, the amendment, if objected to, should be disallowed, for no one may be held to answer except as required by due process. The negligence here charged was that of the estate of William Weightman; by the first amendment, acquiesced in, that estate was in court to answer through its legal representative, such representative being in court in no other capacity; by the second amendment...
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