Chaney v. Nat'l Bank of Commerce

• Decision Date: 23 March 1937
• Docket Number: Case Number: 27006
• Citation: 1937 OK 189,66 P.2d 917,179 Okla. 469
• Parties: CHANEY v. NATIONAL BANK OF COMMERCE
• Court: Oklahoma Supreme Court

1937 OK 189

66 P.2d 917

179 Okla. 469

CHANEY v. NATIONAL BANK OF COMMERCE

Case Number: 27006

Supreme Court of Oklahoma

Decided: March 23, 1937

Syllabus

¶0 PLEADING - Process - Amendments - Statutory Provision.

The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense. Section 251, O. S. 1931.

Appeal from District Court, Tulsa County; Bradford J. Williams, Judge.

Action by the National Bank of Commerce of Tulsa against Esther R. Chaney and another. Judgment for plaintiff. Petition of defendant named to vacate judgment overruled and leave granted plaintiff to amend summons, and defendant named appeals. Affirmed.

Charles L. Yancey, G.C. Spillers, Donald L. Brown, and Kavanaugh Bush, for plaintiff in error.

Everett Petry, for defendant in error.

CORN, J.

¶1 This is an appeal from an order and judgment of the district court of Tulsa county, allowing the plaintiff below to amend the summons by correcting the name of the plaintiff in said summons, and then overruling a petition of the defendant to vacate the judgment theretofore entered in said cause in favor of the plaintiff. The issue presented is whether the defect in the summons was amendable and whether the trial court abused its discretion in allowing the amendment under the circumstances.

¶2 Plaintiff brought this action against Esther R. Chaney and B.E. Chaney, her husband, upon a promissory note and for the foreclosure of a real estate mortgage securing the same. Summons was regularly issued and served upon B.E. Chaney; Esther R. Chaney was not served with the original summons. B.E. Chaney filed an answer and an amended answer. Thereafter an alias summons was issued for Esther R. Chaney. In the alias summons the name of the plaintiff was inadvertently stated as "National Bank of Tulsa, Successor Trustee of the Carl W. Clarke Testamentary Trust." It will be observed that the words "of Commerce" were omitted from the name of the plaintiff. The summons was otherwise regular and regularly served. It showed the proper number of the case and the court in which it was pending, the relief sought and that she was sued by the successor trustee of the Carl W. Clarke testamentary trust.

¶3 In due course of procedure the mortgaged premises were sold to satisfy the judgment. After the sale and the confirmation thereof and the issuance of sheriff's deed, Esther R. Chaney filed a petition to vacate the judgment as to her, whereupon the plaintiff asked leave to amend the summons by correcting the name of plaintiff. Leave was granted, and the petition to vacate was overruled. Esther R. Chaney appeals.

¶4 Section 251, O. S. 1931, is as follows:

"The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense."

¶5 Section 319, C. O. S. 1921 (252, O. S. 1931), is:

"The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect."

¶6 The summons is "process or proceeding" as referred to in these statutes. See Stocker v. Dobyns-Lantz Hdwe. Co., 101 Okla. 134, 224 P. 303, in which the name W.C. Thrasher amended to read J.C. Thrasher; Nix v. Gilmer, 5 Okla. 740, 50 P. 131, summons amended to change name of county to which it was directed; Citizens National Bank v. Wiswell, 88 Okla. 194, 212 P. 583, summons amended to change name of Citizens Bank to Citizens National Bank; and Stuyvesant v. Weil (N.Y.) 60 N.E. 738, summons amended ex parte to change name of Emma J. Stockton to Mary J. Stockton.

¶7 The statute above quoted provides for the correction of the name of a party. The clear implication is that it means either party or any party. The statutes providing for the service of summons states that It shall notify the defendant " 'named therein" that he has been sued by plaintiff, "naming him." There is no distinction made in either statute between the plaintiff or defendant as to the necessity of naming him or correcting his name. Section 166, O. S. 1931.

¶8 The name of either plaintiff or defendant may be corrected. See Hanlin v. Baxter, 20 Kan. 134, in which the name of the plaintiff was changed by amendment from John B. Baxter to William O. Baxter.

¶9 In Springfield Fire & Marine Ins. Co. v. Gish, Brook & Co., 23 Okla. 824, 102 P. 708, the names of the parties in the summons in error were corrected to conform to the petition in error. It approves the case of Gans v. Beasley, 4 N.D. 140, 59 N.W. 714, wherein the court said:

" 'From the instances given, it will be seen that nearly every possible defect in the form of a summons has been made the subject of an amendment, and that the only limit to the power to amend is that discretionary power vested in the court for the protection of the rights of the adverse party'."

¶10 In the case of Brandt Mercantile Co. v. Lang (Miss.) 56 So. 447, the faction was brought by J.H. Lang, assignee of Home Bank of Pass Christian as trustee for the use and benefit of the Metropolitan Bank. The summons notified the defendant that he had been sued by the Metropolitan Bank. An amendment was allowed to make the name of the plaintiff conform to the petition.

¶11 In the case of Wohlfarth v. National Export Ass'n of American Mfgs., 107 N.Y. S. 540, the action was brought by Wohlfarth for the use and benefit of several stockholders of a corporation. The summons notified the defendant that it had been sued by Wohlfarth individually. Held, amendable to conform to the petition. Further, in this connection, see Wight v. Hale (Mass.) 48 Am. Dec. 677; Crafts v. Sikes (Mass.) 64 Am. Dec. 62; and Wilcox v. Hawkins, 10 N.C. 84.

¶12 The plaintiff relies upon the case of Hines v. Bacon, 86 Okla. 165, 207 P. 93. That case is not an authority for the proposition...