Schellhorn v. Williams

• Decision Date: 05 May 1953
• Docket Number: No. 48241,48241
• Citation: 244 Iowa 908,58 N.W.2d 361
• Parties: SCHELLHORN v. WILLIAMS et al.
• Court: Iowa Supreme Court

Page 361

58 N.W.2d 361

244 Iowa 908

SCHELLHORN v. WILLIAMS et al.

No. 48241.

Supreme Court of Iowa.

May 5, 1953.

Armstrong & McNabb, of Waterloo, for appellant.

Reed & Beers; Harris, Van Metre & Buckmaster, of Waterloo, for appellees.

WENNERSTRUM, Justice.

The incident which is the basis of plaintiff's suit occurred on May 5, 1950. His original action was brought against Ward S. Williams, Incorporated and Faye D. Martin, now Mrs. Faye D. Anderson, as defendants. Service of the original notice was obtained on Ward S. Williams, Incorporated, on April 14, 1952 by serving Mrs. Ward S. Williams. The return stated the last named party was the owner of the corporation. Personal service on the other defendant was obtained on April 30, 1952. Since, and apparently even before, May 5, 1950 there has been a business conducted in the City of Waterloo, Iowa, operating under the style and firm name of Ward S. Williams. Prior to the commencement of the suit there had not been filed in the recorder's office of Black Hawk County any trade name affidavit relative to any business operated as Ward Williams or Ward S. Williams. Section 547.1, 1950 Code, I.C.A. The records do show, however, that heretofore there was a corporation entitled Ward S. Williams, Incorporated and its articles provide that it was to continue until 1953 or until formally dissolved. There is no record of its formal dissolution in Black Hawk County, Iowa. It is also shown that Ward S. Williams died on November 10, 1945 and his estate was probated in Black Hawk County, Iowa. On May 5, 1952 a general appearence for Ward S. Williams, Incorporated and Faye D. Martin, now Mrs. Faye D. Anderson, was filed in the original action. The record discloses the last named defendant is the owner of the real estate where the Williams business was carried on. On May 6, 1952 a special appearance was filed in this case by another attorney on behalf of Ward S. Williams, Incorporated. On May 7, 1952 the original attorney withdrew his general appearance for both defendants and on the same date filed another general appearance for only one of the defendants, namely, Faye D. Anderson. On the hearing on the special appearance certain evidence was presented by stipulation and a certificate of formal dissolution of Ward S. Williams, Incorporated, from the Secretary of State's office was submitted to the court without objection. It showed that Ward S. Williams, Incorporated, was dissolved May 17, 1938. Testimony of the attorney relative to his appearance for the original defendants was also presented. He testified he had no authority to appear for Ward S. Williams, Incorporated, had no intention of so appearing, and the appearance so made was by reason of an inadvertent error made by his secretary. On May 12, 1952 the trial court sustained the special appearance of Ward S. Williams, Incorporated.

Thereafter on May 21, 1952 a trade name affidavit was filed listing Elizabeth B. Williams and Elizabeth W. Driver as partners doing business under the trade name of Ward S. Williams. On May 23, 1952 an amended and substituted petition was filed in the district court in the original action substituting Elizabeth B. Williams and Elizabeth W. Driver d/b/a Ward S. Williams as party defendants instead of Ward S. Williams, Incorporated. Following the filing of this amended and substituted petition new original notices were served on the two substituted defendants. The sheriff's return states that Elizabeth B. Williams is also known as Mrs. Ward S. Williams. On May 29, 1952 a general appearance was thereafter filed for these defendants. A motion to dismiss plaintiff's petition on the ground the statute of limitations had run was filed on behalf of the new and substituted defendants. It was stipulated that prior to May 21, 1952 no affidavit of a trade name had been filed in the office of the recorder of Black Hawk County, Iowa, relative to Ward Williams or Ward S. Williams. On July 21, 1952 the court sustained the motion to dismiss the action against Elizabeth B. Williams and Elizabeth W. Driver d/b/a Ward S. Williams. Plaintiff has appealed.

I. The stipulation and other matters shown by the record disclose that there was a business conducted in Waterloo, Iowa, as Ward S. Williams at and following the time when the plaintiff's action was commenced. However, it should be kept in mind his action was brought against Ward S. Williams, Incorporated. It is definitely shown by the record that at the time plaintiff's action was brought there was no corporation in existence known as Ward S. Williams, Incorporated. There is definite evidence the original attorney had no authority to appear for and represent Ward S. Williams, Incorporated. In Kirby v. Holman, 238 Iowa 355, 372, 25 N.W.2d 664, 673, we stated:

'* * * While there is a presumption that an attorney's appearance is authorized, it can be overcome by clear and satisfactory proof. Sloan v. Jepson, 217 Iowa 1082, 252 N.W. 535. * * *' In the instant case there is uncontroverted evidence there was no authority for the appearance made.

In so far as it may be pertinent to this case we hold the trial court was correct in sustaining the special appearance of Ward S. Williams, Incorporated.

II. The primary question presented on this appeal appears to us to relate to the question whether the statute of limitations has run in so far as it concerns the substituted defendants, Elizabeth B. Williams and Elizabeth W. Driver. The statute pertaining to the limitation of actions as it relates to this case provides that an action for injuries to a person must be brought within two years after the cause of action accrues. Section 614.1(3), 1950 Code, I.C.A.

'* * * whether amendment of process or pleading, or both will be allowed which changes the description or characterization of a party after the statute of limitations has run, from a corporation to an individual, copartnership, or other association * * * seems to depend upon whether the misdescription or mischaracterization is interpreted as merely a misnomer or defect in the description or characterization, or whether it is deemed a substitution or entire change of parties; in the former case an amendment will be held to relate back to the commencement of the action, while in the latter the amendment will be held to amount to institution of a new action.

'* * * where an action is brought against a corporation whereas it should have been brought against a partnership; or vice versa, an amendment substituting the proper party defendant after the statute of limitations has run is generally held to be vulnerable to a plea of the statute. And the same rule applied in the case of the substitution of individuals as defendants for the partnership or corporation, or vice versa.' 8 A.L.R.2d 166, Sec. 81. This statement of the annotator relative to the applicable rules is supported in the following cases:

In Davis, v. L. L. Cohen & Co., Inc., 268 U.S. 638, 45 S.Ct. 633, 634, 69 L.Ed. 1129, it is disclosed that an action was brought by Cohen & Co. against the New York, New Haven and Hartford Railroad Company for damages claimed to have occurred when the railroad was under federal control. It was therein stated:

'* * * The Railroad Company was not liable for the cause of action that had arisen during Federal Control; the sole liability being that of the Director General as the representative of the Government. Missouri Pacific Railroad [Co.] v. Ault, 256 U.S. 554, 557, 41 S.Ct. 593, 65 L.Ed. 1087. The original suit against the Railroad Company was not a suit against the Director General, and the service of the original writ upon the Railroad Company did not bring him before the court. * * * And it is immaterial that, as admitted at bar, the service of the writ against the Railroad Company was made upon a clerk upon whom process against the Director General might have been served if the suit had been brought against him. 'The Federal Agent was not bound to take cognizance of an action against the railroad corporation, even though the service was on the same local station agent, and even though the complaint stated a cause of action for personal injuries sustained during government control.' Davis v. Chrisp, 159 Ark. 335, 343, 252 S.W. 606, 609.'

In the Davis v. Cohen case the Supreme Court of the United States held that under an applicable federal statute new parties could not be substituted after two years--a limitation period.

In Sanders v. Metzger, D.C., 66 F.Supp. 262, 263, it is disclosed an action originally was commenced against 'Eli Metzger, trading as or manager of Morris Management Company * * *.' Later plaintiff sought to amend the record by substituting 'Morris Management Company, a corporation'. It was therein stated:

'If the effect of the proposed amendment is merely to correct the name of a party already in court, clearly there is no prejudice in allowing the amendment, even though it relates back to the date of the original complaint. See McDowell v. Kiehel, 3 Cir., 1925, 6 F.2d 337; Weldon v United States, 1 Cir., 1933, 65 F.2d 748; 5 Fed.Rules Service, Comm. 15, c. 31.

'On the other hand, if the effect of the amendment is to substitute for the defendant a new party, such amendment amounts to a new and independent cause of action and cannot be permitted when the statute of limitations has run. [Citing cases.]

'In the instant case, plaintiff contends that Eli Metzger is vice-president of Morris Management Company and that that corporation may be substituted in his place since service on him, as an officer, would have been proper had suit been brought against the corporation in the first place. Further, it is argued that it can not be said that a new party is attempted to be brought on the record because the name Morris Management Company appears in the original proceeding. * * *

'To say that the Company is now in court is contrary to the plain fact. It was not the Company that was...