Heckman's Adm'r v. Louisville & N.R. Co.

• Decision Date: 21 May 1887
• Citation: 85 Ky. 631,4 S.W. 342
• Parties: HECKMAN'S ADM'R v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

4 S.W. 342

85 Ky. 631

HECKMAN'S ADM'R v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

May 21, 1887

Appeal from common pleas court, Jefferson county.

Young &amp Trabue, Kinney & Kinney, and O'Neal, Jackson & Phelps for appellant.

Barnett Noble & Barnett and Wm. Lindsay, for appellee.

LEWIS J.

January 23, 1883, the administratrix of H. Heckman, deceased instituted an action to recover damages for the destruction of his life in December, 1882, alleged to have been caused by the willful neglect of the servants of the defendant, named in the caption of the petition "Louisville, Cincinnati & Lexington Railway Company." The summons on the petition was directed against the same defendant, and the return made thereon by the sheriff of Jefferson county was as follows: "Executed on Louisville, Cincinnati & Lexington R. R. Co., January 24, 1883, by delivering a true copy of the within to M. H. Smith, vice-president, he being chief officer in this county." March 3, 1883, an answer having the same caption, and signed by "Barnett, Noble & Barnett," was filed, which contained simply a traverse by the "defendant" of the allegations of the petition; and appended to the answer was a verification in the usual form, signed "A. M. QUARRIER," who stated therein he was assistant to the president, and assistant secretary of the defendant, and that the president and vice-president were then absent from the state, and that the secretary was too ill to attend to business. In June, 1883, the administratrix having died, an order of revivor was made in the name of the present plaintiff and appellant as administrator de bonis non of the estate of the decedent. All the motions made by the plaintiff were directed against Louisville, Cincinnati & Lexington Railway Company, and the caption of all orders made and entered on record was the same as of the petition, until January 21, 1884, when the plaintiff moved to file an amended petition, which was filed February 7, 1884. In that amended petition the plaintiff stated that by mistake the defendant was styled in the caption of the petition the "Louisville, Cincinnati & Lexington Railway Company," when it should and was intended to be the "Louisville & Nashville Railroad Company," which is the correct name of the defendant, and intended to be sued in the action, and prayed that the defendant be required to defend by its correct name of the Louisville & Nashville Railroad Company, and for judgment against it as prayed for in the original petition. May 31, 1884, an order was made dismissing the action as to the Louisville, Cincinnati & Lexington Railway Company, and June 21, 1884, the Louisville & Nashville Railroad Company filed an answer to the amended petition, pleading and relying upon limitation in bar of the action against it; and the sufficiency of that ground of defense presents the only question before us on this appeal.

As more than one year elapsed from December, 1882, when it is alleged plaintiff's intestate was killed, to February, 1884, when the amended petition was filed, the simple inquiry is whether that amendment made an entirely new action against the Louisville & Nashville Railroad Company. Though a party against whom a cause of action exists may be sued therefor by the wrong name, yet if the summons be actually served upon him, and he appears and files an answer, it seems to us he is effectually before the court, as much a party to the action and concluded by a judgment rendered against him as if his name had been entered in the caption of the petition, and in the summons issued by the clerk. Such was the rule under the former system of pleading; for, as said by this court in Louisville & N. R. Co. v. Hall, 12 Bush, 131, relying upon the authority of Chitty's Pleading: "At common law, when the defendant was sued by the wrong name, he might plead that fact in abatement, but to make his plea good he was bound to give the plaintiff a better writ in the future by disclosing his true name." And, as held in the case cited, the same rule may be applied under our Civil Code. Moreover, section 134 expressly authorizes a petition to be amended at any stage of the action by correcting a mistake in the name of a party.

In Sherman v. Proprietors Connecticut River Bridge, 11 Mass. 337, the plaintiff brought an action against the defendants by the name of "The Proprietors of a Bridge over Connecticut River between Montague and Greenfield, late in the County of Hampshire, and now in the County of Franklin." And afterwards the plaintiff was permitted to amend his writ by altering the name of the defendant to that of "The Proprietors of the Connecticut River Bridge." It appears that certain persons were incorporated by the name mentioned in the writ but, that company having forfeited its charter, a new and distinct one was...