Haggarty v. Strong

• Court: Supreme Court of South Dakota
• Writing for the Court: CORSON, P. J.
• Citation: 10 S.D. 585,74 N.W. 1037
• Decision Date: 05 April 1898
• Parties: HAGGARTY, Plaintiff and respondent, v. SYLVESTER STRONG and Henry Miller, dba Strong & Miller, Defendants and appellants.

10 S.D. 585
74 N.W. 1037
HAGGARTY,
Plaintiff and respondent,
v.
SYLVESTER STRONG
and Henry Miller,
dba Strong & Miller,
Defendants and appellants.


South Dakota Supreme Court
Appeal from Circuit Court, Roberts County, SD
Hon. J. O. Andrews, Judge
Affirmed

J. J. Batterton, Thomas L. Bouck
Attorneys for appellants.

E. J. Forman, Howard Babcock
Attorneys for respondents.

Opinion filed April 5, 1898

[10 SD 586]

CORSON, P. J.

This is an appeal by the defendants from a judgment entered against them. No motion for a new trial was made, and hence the only errors assigned and to be considered are those presenting questions of law. The action was originally commenced against Strong & Miller as a corporation, but on motion of plaintiff the summons and complaint were amended by striking out the words “Strong & Miller, a corporation, duly organized and existing under the laws of the state of Minnesota, defendant,” and inserting in place thereof the words “Sylvester Strong & Henry Miller, co-partners in business under the firm name and style of Strong & Miller, defendants,” and the complaint was amended to correspond with said amendment of the title. The appellants claim that the court erred in allowing this amendment, and insist that it had no jurisdiction to allow an amendment that brought into the case entirely new defendants. They further insist that the action, as originally commenced, had, in fact, no party defendant, as there was no such corporation as that attempted to be made defendant; and that the amendment, therefore, in effect,

[10 SD 587]

made parties defendant who had never been served with summons in the action. The respondent contends that the court had jurisdiction of the subject matter of the action, and, the defendants having appeared in the action on three several occasions generally, and made no motion to dismiss the action, stipulated, after the amendment was made, that their answer should stand as the answer to the amended complaint, and proceeded to trial thereon, they cannot now be heard to deny the jurisdiction of the court to make the amendment. The summons and complaint were served upon one Aarsness, a person in charge of defendant’s place of business at Sisseton, on or about January 3, 1896. Before the motion for leave to amend was served, the defendants served an answer, served upon plaintiff a notice of trial, and entered into a stipulation waiving objections to the trial of the case at an adjourned term of the court. The service of the summons and complaint were clearly insufficient, whether the defendants constituted a corporation or a partnership, to give the court jurisdiction, had the defendants not appeared in the action, and will not be further considered in the opinion. The defendants, however, appeared generally in the action. In their answer, for a first defense, the defendants allege that there is no such corporation as Strong & Miller, but that Sylvester Strong and Henry Miller are partners, doing business under such firm name, and allege that the court has never acquired jurisdiction of said partnership, or either of the members thereof, and that they have never appeared in the action. But in the second defense the said Strong & Miller, as partners aforesaid, deny each and every allegation in said complaint, and the whole thereof. The answer then proceeds to set out a third defense to the merits of the action. The answer therefore constitutes a general appearance on the part of the defendants Strong and Miller, as co-partners.

While ordinarily, a court could not properly allow an amendment by striking out the only defendant named, and substituting

[10 SD 588]

an entirely new defendant, we are of the opinion that under the peculiar facts existing in this case the court not only had the power to allow the amendment, but properly exercised it. Strong and Miller, as co-partners, were in court by their general appearance, and there was no such corporation as Strong & Miller. It is not the case of bringing the action against the wrong corporation by the same name, as was the case in Little v. Water Co., 9 Nev. 317. The corporation intended to be sued in that case had never appeared, and was not in court. Nor does this case come within the principle established in New York State Monitor Milk Pan Ass’n v. Remington Agricultural Works. 89 NY 22. In that case there was a corporation against which the action was brought, and that corporation was in court defending the action. While proceeding with the action, the plaintiff discovered that the action...