Jefferson v. Hotel Cape May

• Decision Date: 20 October 1911
• Citation: 81 A. 349,82 N.J.L. 32
• Parties: JEFFERSON v. HOTEL CAPE MAY
• Court: New Jersey Supreme Court

81 A. 349

82 N.J.L. 32

JEFFERSON

v. HOTEL CAPE MAY

Supreme Court of New Jersey.

Oct. 20, 1911.

(Syllabus by the Court.)

Action by Matthew Jefferson, administrator, against the Hotel Cape May. Motion to amend summons and declaration. Amendment allowed on condition.

Argued June term, 1911, before SWAYZE and BERGEN, JJ.

John W. Wescott, for the motion.

John H. Backes, opposed.

SWAYZE, J. This is a motion to amend a summons and declaration by substituting "Cape May Hotel Company" for "Hotel Cape May" as the name of the corporation defendant. The ease differs from Maitland v. Worthington, 59 N. J. Law, 114, 35 Atl. 759, in the fact that here there was an actual service of summons, and the only error was in naming the corporation. The proper officer must have been served, since the Cape May Hotel Company appears and files a plea in abatement of misnomer. At common law, even in the absence of a statute like ours, an amendment was permitted after a plea of misnomer. Tidd's Practice, 697; 1 Chitty Pleading, 463, 464. Mestaer v. Hertz, 3 M. & S. 450, notable for a clear statement by Lord Ellenborough. We decided Maitland v. Worthington prior to the practice act of 1903. At that time an amendment of the summons was authorized only when there had been a mistake in the service, and our opinion emphasized that fact. It was of controlling force, since the effect of the mistake was that the desired defendant had not been brought into court, and a new summons was required. By section 53 of the act of 1903, a new summons may be ordered where an error is made in the issuing or service. P. L. 1903, 549. The change was very likely due to the decision in the Maitland Case. The present plaintiff, however, does not need to appeal to the statute. His summons has been served upon the proper officer of the corporation, and the corporation, has pleaded to the declaration. This is very different from Maitland v. Worthington, in which there never was service upon any one and only an order of publication, or Hubbard v. Montross Metal Shingle Co., 79 N. J. Law, 208, 74 Atl. 254, where the effort was to change the party defendant from a corporation to two individual defendants, and there was not, as indeed there could not be, a plea of misnomer. In this case the Cape May Hotel Company in the very beginning of its plea avers that the plaintiff has commenced his action against it by the name of Hotel Cape May. The plaintiff does not seek by amendment to change the party defendan...