Markel v. Dowling & Co.

• Decision Date: 07 April 1924
• Docket Number: 290
• Court: Pennsylvania Commonwealth Court
• Parties: Markel v. Dowling & Company, Inc

5 Pa. D. & C. 403

Markel v. Dowling & Company, Inc

No. 290

Common Pleas Court of Cambria County, Pennsylvania

April 7, 1924

March T., 1923.

Rule to amend by changing defendants' name to " John Dowling and John Uraschik, a co-partnership, trading and doing business as Dowling & Company."

W C. Fletcher (of Blair County Bar) and Mathiot Reade , for rule.

Shettig & Nelson , contra.

OPINION

EVANS P. J.

On Jan 12, 1923, the above named plaintiffs instituted an action of trespass, naming Dowling & Company, a corporation, as the defendant, and at the same time filed their statement. On Jan. 16, 1923, Messrs. Shettig & Nelson accepted service of the writ and plaintiffs' statement of claim, and on the same day entered their appearance for the defendant.

The cause of action set up in plaintiffs' statement arose on Jan. 28, 1923, as the result of the injury and death of their child, Which was charged to the negligence of the defendant.

On May 28, 1923, the plaintiffs filed a motion to change the name of the defendant to John Dowling and John Uraschik, a co-partnership, trading and doing business as Dowling & Company. A rule to show cause was granted, and an answer filed by Dowling & Company through Shettig & Nelson, attorneys, setting up that the cause of action set forth in the statement arose with the death of the minor child of the plaintiffs on Jan. 31, 1922, and that the motion to amend the record by substituting the names of the respondents as parties defendant in the case was more than one year after the cause of action had arisen, that, therefore, the statute of limitations would prevent the amendment, and also that the amendment, if allowed, would substitute the respondents as defendants in place of the alleged corporation, which would be an amendment introducing new parties.

It is well settled that under the Act of May 4, 1852, P. L. 574, the right of amendment is limited so that a new cause of action shall not be introduced, nor new parties brought in, after the statute of limitations has become a bar: Coyne v. Railway Co., 227 Pa. 496; but it is equally well settled that if a party be brought into court under a wrong name, an amendment will be permitted: Wright v. Eureka Tempered Copper Co., 206 Pa. 274; McGinnis v. The Valvoline Oil Works, Ltd., 251 Pa. 407.

It is conceded in the present case that there was no such corporation as Dowling & Company, but that there was a partnership composed of John Dowling and John Uraschik, trading under the firm name of Dowling & Company, and that the law firm of Shettig & Nelson represented this partnership; it will also be kept in mind that there was no service by the sheriff in the present case, but that Messrs. Shettig & Nelson accepted service of the writ and the plaintiffs' statement and entered their general appearance in the case.

Before discussing the present case, we think it pertinent to quote from the case of Anglo-American Packing and Provision Co. v. Turner Casing Co., 8 P. 403. In this case the defendant was sued as a corporation; the only service was by publication, and a general appearance was entered for the defendant company and an answer filed to the merits of the action. Later or subsequently, an answer was filed setting up that the Turner Casing Company was not a corporation, but was a co-partnership composed of certain persons. Justice Valentine, of the Kansas Supreme Court, among other things, said:

" The defendants, however, Sigismund Oppenheimer, Julius Oppenheimer, Oscar Aberle and Patrick A. Turner, claim that the service of the summons by publication or otherwise is void; and we suppose also claim that the service of the order of attachment is void, though they do not expressly say so. And they also claim that they made no appearance in the case until the time when they made their special appearance -- which we have numbered '5' -- to dismiss the plaintiff's action. And they support these claims by reasoning which is very ingenious and plausible, but which we, nevertheless, regard as extremely technical and unsatisfactory. They claim that the plaintiff sued the Turner Casing Co., a corporation, and that all the appearances that were made, or that could be made, were made only in that capacity, and that, as no such corporation existed, there were really no valid appearances. For the purposes of this case, we shall discuss principally the appearance made when the answer was filed. This answer included a general denial, which was an answer to the merits of the case; and if it was the defendants who made this appearance, then they surrendered jurisdiction of their persons to the court, and are bound by such answer....

" And we think it was the defendants who made this appearance and who filed the answer; and this, notwithstanding the technical objections that may have been urged against it. Courts, under the reformed system of procedure, look to the substance of things rather than the form, and to persons and things rather than to mere names. This manner of treating things constitutes the life and spirit of the reformed system of procedure. Did the defendants in fact make the foregoing appearance? The action was commenced against 'The Turner Casing Co.' A certain organization of persons were at that time, and had been for a long time previously, doing business under that name. It was this organization that was intended to be sued. It is true, the petition alleged that the organization was a corporation, while in fact it was a co-partnership; but no other organization existed of that name, and that organization was composed of these defendants. The publication notice, however, was not to the Turner Casing Co. as a corporation, but it was simply to 'The Turner Casing Co.; ' and it is the notice which brings parties within the jurisdiction of the court, and this notice applied to The Turner...