Coventry v. Barrington, 43.
| Decision Date | 02 October 1936 |
| Docket Number | No. 43.,43. |
| Citation | 187 A. 348 |
| Parties | COVENTRY et ux. v. BARRINGTON et al. |
| Court | New Jersey Supreme Court |
Appeal from Supreme Court.
Action by John D. Coventry and wife against Herbert Barrington and the Lightning Service Company, a corporation, wherein plaintiffs filed a motion to amend the summons and complaint. From an order denying the motion, plaintiffs appeal.
Affirmed.
Edmund A. Hayes, of New Brunswick, for appellants.
Chas. B. Clancy, of Newark, for respondent.
This is an appeal from an order of the Supreme Court, Middlesex County Circuit, denying application of the plaintiffs below, appellants here, to amend the summons and complaint.
The facts are stipulated. It appears that the plaintiffs, husband and wife, brought suit for damages arising out of a collision between an automobile driven by Mrs. Coventry and an automobile of the Lightning Service Company, then being operated in a negligent manner, as is alleged, by its employee, Herbert Barrington.
The plaintiff husband demanded compensation for the damage done the automobile, for the expenses incurred by his wife's illness, and for loss of her services. Mrs. Coventry sought damages for the personal injuries she suffered.
When suit was instituted by these plaintiffs, the defendant company was designated in the process and pleadings as "Lightning Service Co., a corporation." As a matter of fact it was not a corporation. It was a partnership consisting of two individuals doing business under a trade name. The motion was to amend the summons and complaint by substituting for the designation "Lightning Service Co., a corporation," the names of the individuals, Benjamin Nadelberg and Albert Richman, trading as Lightning Service Company, as defendants. At the time the application for the amendment was made by the plaintiffs, more than three years had elapsed from the time of the occurrence upon which the action was founded. Consequently, if the proper party defendant was not then in court, no action could be suecessfully prosecuted for damages that arose out of the personal injuries because of the bar of the statute of limitations. 3 Comp.St.1910, p. 3164, § 3.
The learned trial judge signed an order denying the application to amend "because the effect of the same would be to add a new party after the statute of limitations had run."
The theory of the appellants' argument for a reversal of the order is that the amendment sought was one of form rather than substance. We cannot accede to this proposition.
The point is made that Nadelberg was actually served. As to this, the stipulation of facts informs us that the sheriff made a return that he served the summons and complaint "upon Lightning Service Company, a corporation, by delivering a true copy thereof to B. Nadelberg, Registered Agent * * *" This service was in effect a nullity. No such entity was existent. That being so, it follows that Nadelberg could not, in the very nature of things, be a "registered agent" for a principal that had no legal being. The parties now sought to be charged by the mechanics of amending the process and pleadings were not served or brought into court before the two-year statutory limitation had expired.
To have allowed the amendment under the circumstances would be to recreate a cause of action which had existed but had expired by lapse of time fixed by the statute for instituting the suit. Such action would be a disregard of the statutory mandate.
The intended amendment was substantial, not formal. It proposed to bring in a new party which theretofore had not been...
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Hammond-Knowlton v. United States
...proper capacity is irremediable after the statute has run. Cf. Fitzpatrick v. Pitcairn, 371 Ill. 203, 20 N.E.2d 280; Coventry v. Barrington, 117 N.J.L. 217, 187 A. 348; Holliday v. Mangels, D.C., 33 F.Supp. 471; Toledo Edison Co. v. McMaken, 6 Cir., 103 F.2d 72. But Boyd v. United States Mo......
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Romero v. Gold Star Distribution, LLC
...was improper, and relies on an eighty-five-year-old case, which is distinguishable in a number of respects. See Coventry v. Barrington, 117 N.J.L. 217, 187 A. 348 (E. & A. 1936). In Coventry, the only similarity to the present matter is the original naming of the incorrect entity; however, ......
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Sinatra v. National X-Ray Products Corp.
...there may be question as to whether it is to be related back to the filing of the original complaint (compare Coventry v. Barrington, 117 N.J.L. 217, 187 A. 348 (E. & A. 1936), and Markey v. Robert Hall Clothes of Paterson, 27 N.J.Super. 417, 99 A.2d 552 (Cty.Ct.1953), with King v. Solomon,......
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Eskon v. Four Star Realty Co.
...as to the identity of the person or persons who were liable for her injury. This case is not unlike the case of Coventry v. Barrington, 117 N.J.L. 217, 187 A. 348 (E. & A. 1936). There the plaintiffs erroneously designated the intended defendant as a corporation, whereas in fact it was a pa......