United States v. AH Fischer Lumber Co.

• Decision Date: 25 July 1947
• Docket Number: 5603.,No. 5602,5602
• Citation: 162 F.2d 872
• Parties: UNITED STATES v. A. H. FISCHER LUMBER CO. SAME v. A. H. FISCHER CO., Inc., CHARLESTON, S. C.
• Court: U.S. Court of Appeals — Fourth Circuit

162 F.2d 872 (1947)

UNITED STATES v. A. H. FISCHER LUMBER CO.

SAME v. A. H. FISCHER CO., Inc., CHARLESTON, S. C.

Nos. 5602, 5603.

Circuit Court of Appeals, Fourth Circuit.

July 25, 1947.

Louis M. Shimel, Asst. U. S. Atty., of Charleston, S. C. (Ben Scott Whaley, U. S. Atty., of Charleston, S. C., on the brief), for appellant.

Charles W. Waring, of Charleston, S. C. (Waring & Brockinton, of Charleston, S. C. on the brief), for appellees.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

These are appeals from orders dismissing two action instituted by the Administrator of the Office of Price Administration to recover damages for violation of the Emergency Price Control Act of 1942, 50 U.S. C.A.Appendix, § 901 et seq., and obtain injunctive relief against the A. H. Fischer Company, a corporation created under the laws of South Carolina and doing business in the City of Charleston in that state. Summons in each case was served by the Marshal upon an official of the A. H. Fischer Company; and in each case that company entered a special appearance and moved to dismiss on the ground that it was not properly named in the summons and complaint. In the first action, which was commenced on October 22, 1946 and in which defendant was named as A. H. Fischer Lumber Company, the court refused plaintiff leave to amend so as to strike out the word "Lumber" and on December 19, 1946 sustained the motion to dismiss. In January 1947 plaintiff filed another action against defendant, under the name of A. H. Fischer Company, Inc. The court refused plaintiff leave to amend by striking out the "Inc." and entered an order dismissing the action. Appeals were taken from both orders of dismissal.

We think that the court committed error in both cases. The defendant was engaged in some branch of the lumber or woodworking business, there was no other corporation in the locality with a similar name, and nobody was misled in the first case by including the word "Lumber" in the corporate name of the defendant in the summons and complaint. Process was served upon one of defendant's officers; and when its attorney came into court with a special appearance, neither he nor anyone else had any doubt that the defendant was the corporation intended to be named as defendant. In the second case, the use of the word "Inc." was merely descriptive of the defendant as being a corporation. Without amendment the process in both cases adequately named the defendant and was sufficient to bring it into court. A suit at law is not a children's game, but a serious effort on the part of adult human beings to administer justice; and the purpose of process is to bring parties into court. If it names them in such terms that every intelligent person understands who is meant, as is the case here, it has fulfilled its purpose; and courts should not put themselves in the position of failing to recognize what is apparent to everyone else. As said in 14 C.J. 325, "As a genral rule the misnomer of a corporation in a notice, summons, notice by publication, garnishment citation, writ of certiorari, or other step in a judicial proceeding is immaterial if it appears that it could not have been, or was not, misled." See, also, 18 C.J.S., Corporations § 172.

The corporation had the right to be accurately named in the process and pleadings of the court; and misnomer was properly raised by motion to dismiss under the new practice in lieu of the old plea in abatement. When the motion was made. however, plaintiff, upon his request, should have been permitted to amend. What was involved was, at most, a mere misnomer that injured no one, and there is no reason why it should not have been corrected by amendment. The case is not one, as the judge below apparently thought, of an amendment which would bring the defendant into the case for the first time and might prejudice its right to rely on the statute of limitations.^* The defendant had unquestionably been brought into the case, and in the absence of the motion to dismiss, would have been bound without amendment by any judgment that might have been rendered therein. The office of the requested amendment would merely have been to name the defendant properly. Rule 4(h) of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c provides:

"Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued."

That amendments in furtherance of justice shall be freely allowed is the clear intendment of the rules, the provision of Rule 15(a) with regard to the amendment of pleadings being:

"Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is...