Hogsed v. Pearlman

• Decision Date: 23 March 1938
• Docket Number: 165.
• Citation: 195 S.E. 789,213 N.C. 240
• Parties: HOGSED v. PEARLMAN.
• Court: North Carolina Supreme Court

195 S.E. 789

213 N.C. 240

HOGSED v. PEARLMAN.

No. 165.

Supreme Court of North Carolina

March 23, 1938

Appeal from Superior Court, Transylvania County; Felix E. Alley Judge.

Action by Austin Hogsed against H. Pearlman, trading and doing business as Pearlman's Railroad Salvage Company, for injuries sustained in the operation of a truck. From a judgment denying plaintiff's motion to amend the summons and complaint by striking out the words "H. Pearlman trading as Pearlman's Railroad Salvage Company," and substituting the words "Pearlman's Railroad Salvage Company, Inc.," in the summons and complaint, plaintiff appeals.

Affirmed.

Motion to amend the summons and complaint by striking out the words "H. Pearlman, Trading as Pearlman's Railroad Salvage Company," and substituting in place thereof the words "Pearlman's Railroad Salvage Company Incorporated," in the summons and complaint. The motion was denied, but the court entered order that Pearlman's Railroad Salvage Company, Incorporated, be made party defendant and that plaintiff be allowed to file additional or amended pleadings. Plaintiff appealed.

Ralph H. Ramsey, Jr., of Brevard, for appellant.

J. M Horner, Jr., of Asheville, for appellee.

DEVIN Justice.

This appeal presents for review the ruling of the court below denying plaintiff's motion to amend process and pleading by substituting for the name of the individual defendant sued (H. Pearlman, Trading as Pearlman's Railroad Salvage Company) the name of Pearlman's Railroad Salvage Company, Incorporated, as the party defendant, without the issuance of process for the named corporation. The court below, however, in denying the plaintiff's motion to amend, entered an order making Pearlman's Railroad Salvage Company, Incorporated, a party defendant, with leave to the plaintiff to file additional or amended complaint. But the plaintiff contends that he was entitled to have the court, by amendment to the summons and complaint and by substitution of the name of Pearlman's Railroad Salvage Company, Incorporated, as party defendant, bring the corporation into court without the issuance of summons therefor.

The facts as they appear from the pleadings and the findings of the trial judge were substantially these:

On June 7, 1937, plaintiff caused summons to issue for H. Pearlman, trading as Pearlman's Railroad Salvage Company, and on August 7, 1937, filed complaint alleging a cause of action against the named defendant for negligent operation of a truck on September 8, 1934, causing injury to the plaintiff. Summons and complaint were served on defendant H. Pearlman on August 9, 1937, as found by the court, "by reading the within summons and delivering a true copy of the verified complaint on the within named defendant." Answer was filed by H. Pearlman September 13, 1937, containing general denial of the allegations of negligence. Motion to amend process and pleading was filed December 10, 1937.

It was found by the court that prior to 1933 H. Pearlman had been carrying on business under the name of Pearlman's Railroad Salvage Company, but that in 1933, in order to obtain new capital, a corporation was duly organized by the name of Pearlman's Railroad Salvage Company, Incorporated, which took over the business, and issued 151 shares of capital stock, of which H. Pearlman owned 3 shares, H. Pearlman becoming secretary and treasurer of the corporation; that the truck, the operation of which it is alleged caused injury to plaintiff, was, with other property, in 1933, transferred to said corporation. It was admitted by plaintiff and found by the court that plaintiff was aware of the transfer of the property to the corporation, but by inadvertence had summons issued and complaint filed against the individual defendant H. Pearlman, and was not misled by this defendant or by the corporation.

The power of the court under C.S. § 547, to amend process and pleading was recently considered by this court in Clevenger v. Grover, 212 N.C. 13, 193 S.E. 12. There the summons was issued against the "Knott Hotel Company," whereas the corporation intended to be sued was "Knott Management Corporation" and proper service of process was had upon the agent of the latter corporation. The ruling of the judge of the superior court in that case in allowing the amendment to substitute the correct name was affirmed by this court, citing Gordon v. Gas Co., Pintsch Gas Case, 178 N.C. 435, 100 S.E. 878 and other cases of similar import. But distinction was there drawn between the holding in that case and the principle set forth in Jones v. Vanstory, 200 N.C. 582, 157 S.E 867, and Plemmons v. Imp. Co., 108 N.C. 614, 13 S.E. 188. In the last-named cases, in which individuals...