Stewart v. Preston

• Decision Date: 10 July 1920
• Citation: 80 Fla. 479,86 So. 348
• Parties: STEWART v. PRESTON et al.
• Court: Florida Supreme Court

86 So. 348

80 Fla. 479

STEWART v. PRESTON et al.

Florida Supreme Court

July 10, 1920

On Petition for Rehearing, Oct. 18, 1920.

Suit by Henry J. Stewart against Laura L. Preston, Knickerbocker Trust Company, and others. From the denial of complainant's motion to strike from the files a demurrer interposed by Columbia Trust Company, formerly Knickerbocker Trust Company, and from other orders, complainant appeals.

Order affirmed.

On Petition for Rehearing.

Syllabus by the Court

SYLLABUS

Change in name has no effect upon its rights, property, or liabilities. The change in the name of a corporation has no effect whatever upon its property, rights, or liabilities. It continues as before, responsible in its new name for liabilities previously contracted or incurred, and has the right to sue on contracts made or liabilities incurred to it before the change.

Should sue and be sued by changed name. After the name of a corporation has been changed, it should, by proper averments to show the change, sue and be sued by its new name.

Change in name has no effect on identity. The change in the name of a corporation has no more effect upon its identity as a corporation than the change in the name of a natural person has upon his identity.

One sued by wrong name may appear by correct name. Where a person is sued by his wrong name he may appear and defend the action by his correct name.

Pro confesso should not be entered against party sued by wrong name and appearing by its right name. Where a person is sued by a wrong name and he appears and submits himself to the jurisdiction of the court by his true name, he is not in default, and a decree pro confesso should not be entered against him.

May be amended to correspond with names by which parties suing in wrong name appear. When a person is sued by a wrong name and appears by his right name, it is proper to amend the pleadings to correspond with the name by which he appears.

Name of party indicating usual subjects of corporation imports a corporation. Where the name of a party is manifestly a charitable, educational or commercial, manufacturing or financial one, such as are usual subjects of incorporation and not one common to copartnerships or individuals, it should import a corporation, and whether it does or not should as a general rule be left to judicial knowledge.

Corporation defendant is not in default because it appears by its new name. Where a party is sued as a corporation it is not in default because it appears by its name without describing itself as a corporation.

Party sued by wrong name may waive his right to plead in abatement. Where a party sued by a wrong name wishes to appear and defend on the merits, he may waive his right to plead in abatement, and by appropriate averments, showing that he is the identical party sued, appear and plead to the merits by his true name.

Based on facts not apparent on face of record must be supported by affidavits or other proof. Where a motion is grounded on facts that are neither apparent from the face of the record or papers on file in the case, nor within the judicial knowledge of the court, it must be supported by affidavits or other proof.

Rehearing will be denied unless error is shown. Where a petition for a rehearing does not suggest anything which gives the court reason to apprehend that its judgment is erroneous, a rehearing should be denied.

Appeal from Circuit Court, Alachua County; J. T. Wills, Judge.

COUNSEL

T. B Ellis, Jr., of Gainesville, for appellant.

Hampton & Hampton, of Gainesville, for appellees.

OPINION

JONES Circuit Judge.

On January 30, 1918, the appellant filed his bill to remove clouds from title in the circuit court for Alachua county against Knickerbocker Trust Company, a corporation, and several other defendants. All the defendants being nonresidents of the state of Florida, constructive service by publication was had upon them; the process being returnable on the 4th day of March, 1918. On the return day of the process the following entry of appearance, omitting the venue and style of the case, was filed in the clerk's office:

Appearance of Columbia Trust Company (Formerly Knickerbocker Trust Company).

'Comes now Columbia Trust Company, formerly Knickerbocker Trust Company, by its attorneys, Hampton & Hampton, and appears on this 4th day of March, A. D. 1918.

'Hampton & Hampton,

'Attorneys for Columbia Trust Co. (Formerly Knickerbocker Trust Co.).'

On the return day of the process the complainant, who is the appellant, filed a praecipe for a decree pro confesso against all defendants who fail to appear, but the clerk refused to enter a decree pro confesso against Knickerbocker Trust Company, a corporation. The complainant thereupon on March 21, 1918, filed a motion to the court to enter a decree pro confesso against the Knickerbocker Trust Company for failure to appear, but the chancellor denied the motion. On the rule day in April, a demurrer to the bill was filed, the introductory paragraph of which is as follows:

'Comes now the defendant Columbia Trust Company (formerly Knickerbocker Trust Company), a corporation, by its attorneys, Hampton & Hampton, and files this its separate demurrer to the complainants' bill of complaint herein and for cause of demurrer says. * * *'

After stating the grounds of demurrer it was signed by Hampton & Hampton as solicitors for defendant Columbia Trust Company (formerly Knickerbocker Trust Company). On April 5th complainant moved the court to enter a decree pro confesso against Knickerbocker Trust Company, a corporation, on the ground that said corporation had failed to appear, plead, answer, or demur to the bill, which motion was denied by the chancellor, whereupon the complainant moved the court to strike from the files the said demurrer because the Columbia Trust Company is not a party defendant to the bill filed, is a mere intruder, and has no standing in court. The motion to strike being denied, the complainant appealed and assigned as errors the rulings of the court upon the several motions.

The correct answer to the question which follows, propounded by counsel for complainant, will solve the main issue presented:

'Can a person not named as a defendant in a chancery suit appear in that suit, and, by so appearing, prevent the entry of a decree pro confesso for failure to appear against one who is named as a defendant in the suit and who failed to appear?'

It is true, as contended by complainant, that as a general rule a complainant in equity cannot be compelled to litigate with a third party not made by him a defendant to the bill; but the question propounded and the general rule stated have no application to the facts of this case.

It is not apparent that a party not named as a defendant has appeared to the bill. Knickerbocker Trust Company, a corporation, was sued; Columbia Trust Company, in obedience to the court's process, appears, submits itself to the jurisdiction of the court, and in so doing alleges in substance by the use of the word 'formerly,' that it is the identical corporation sued, formerly known as Knickerbocker Trust Company.

The lanaguage used in the entry of appearance signifies merely a change of name of the defendant corporation, but no change of its identity. The change in...