Gorgon v. Pintsch Gas Co.

The defendant, upon its own showing, failed “to give the matter that amount of attention which a man of ordinary prudence usually gives to his important business,” and therefore would not be entitled to set aside the judgment for excusable neglect, even if such motion had not been barred by the lapse of more than a year. • Sluder v. Rollins, 76 N. C., 271; Roberts v. Allman, 106 N. C., 394, and citations thereto in Anno. Ed.

The case stands, therefore, upon the power of the court, in its discretion, to allow the amendment asked for. Rev., 507, provides that the “Judge or court may, before and after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party; or by correcting a mistake in the name of a party, or a mistake in any other respect,” etc. The language of the statute itself shows that this is a discretionary power, and it has always been held that the granting or refusal of amendments in the cases named is not reviewable by appeal except in cases of palpable abuse. See citations to Pell’s Revisa!, see. 507. Also, Sheldon v. Kivett, 110 N. C., 411, and cases there cited.

The evidence in this case fully warranted the findings of fact in the judgment, and the grant of the leave to amend. There is no question upon the affidavits on both sides that the Pintsch Compressing Company was’the party charged with committing the tort sued on; that the general manager of the compressing company was served with summons; that he sent it to the general office in New York, which employed counsel, and at his death employed another counsel, and later, on the death of the latter counsel, employed another; that the company sued was known generally by the name mentioned in the summons, which is held sufficient, even as to’ defendant’s in an indictment, subject to plea in abatement in which the defendant must give its true name. The general manager in New York, in his affidavit, states that his recollection is that a second srpnmons was served, giving the name of defendant as the “Pintsch Compressing and Gas Company.” There is no indication that *439tbe defendant suffered any prejudice by reason of tbe misnomer, and it bas waived any objection by not giving its true name by plea in abatement.

“A misnomer does not vitiate provided tbe identity of tbe corporation or person witb tbat intended by tbe parties is apparent, whether it is in a deed, Asheville Division v. Aston, 92 N. C., 584, or in a judgment, or in a criminal proceeding, McCrae v. Starr, 5 N. C., 252.”

Tbe judgment by default and inquiry in December, 1913, and tbe judgment final in March, 1918, upon tbe verdict of tbe jury, were, both taken regularly “according to tbe course and procedure of tbe courts.” There is no question tbat this appellant bad tbe fullest knowledge tbat tbe action was against itself, and tbat it bad tbe amplest opportunity to defend.

Tbe amendment rested in the discretion of tbe court.

Affirmed.

dissenting: There was no serious denial by tbe defendant of tbe right to have tbe record amended by inserting tbe correct name of defendant for tbe incorrect one — tbat is,, tbe compress company for tbe gas company, two names radically different in pronunciation and not coming under tbe rule of idem, sonahs. Tbe power of amendment was not tbe real point raised by tbe defendant, but bis right to answer, if tbe power was exercised and tbe amendment made. My opinion is tbat be should have been granted tbat right. If tbe plaintiff could enforce bis judgment, tbe amendment was not necessary, and tbe fact tbat it was made shows tbat plaintiff and tbe court considered it necessary in order to enforce tbe judgment. It was, therefore, a material amendment, and not merely formal. Tbe plaintiff was asking for a favor from tbe court, and when be received it, it does not come witb good grace from him to question defendant’s right to be beard. But I do not regard it as a mere favor tbe defendant is asking of tbe court, but a right to which be is entitled. In Atwood v. Landis, 22 Minn., 558, tbe Court went beyond the position I now take and held tbe judgment in a similar case to be void, tbe process not having been served on tbe party by bis right name. It is 'not necessary tbat we .should. go so far, as defendant only asks leave to answer. Tbe facts of tbat case were precisely like those in this record, as tbe man upon whom tbe summons was served was tbe one who owed tbe debt. Farnham v. Hildrich, 32 Barbour (N. Y.), 277, is directly in point. It was decided as follows:

“1. Tbe judgment and execution must describe tbe party whose property is sought to be taken, and it is not enough tbat tbe right man is made to pay a debt.

“2. The sheriff can only execute tbe process against tbe person or property of tbe individual named.

*440“3. "Where a defendant, sued by a wrong name, fails to appear in the action, he does not waive his right to object to the misnomer, after judgment and execution,” citing many authorities.

This decision was approved in the Minnesota case, which we cited above. See, also, Cole v. Hindson, 101 English Rep. (Reprint), 528 (S. C., 6 Term Rep., 234). All these cases decide beyond any doubt that if plaintiff is permitted to amend, the defendant should be allowed to answer or demur as if there had been no judgment.

But, aside from authority upon this question, it would seem to be fair and just that defendant should be allowed to answer to the merits. If plaintiff’s amendment is necessary in order that he may enforce the judgment, it is substantial, and no reason, in that view, can be discovered why defendant should not be entitled to plead or answer in the case, ■the judgment being set aside for that purpose. The defendant was not by the law called upon to answer a defective complaint filed under defective process, nor was it required to come into a suit, appear, and plead when it had not been properly summoned to do so. When process was served upon the compress company, even if the same was defective, it had the right to retain counsel to investigate and protect its interests, ánd this cannot be used to its prejudice. A person would be very imprudent and unwise to pursue any other course. It did not appear because it was not required to do so, and waive its rights in favor of the plaintiff. If one is served with process by one name, he is not bound to answer if that is not his true name, but is quite different. He is not bound to correct the plaintiff’s, or the sheriff’s, mistake. • It appears, or at least was stated in the argument, that the lot in question was not worth over $700, and the plaintiff offered to sell it for $800, and yet the damages were assessed at four times that much, or $2,975. This is a large recovery in any case, but especially so, and also a very unjust one, when the defendant has properly had no day in court. A plaintiff must not only intend to sue the one whom he alleges to be liable to him, but he must actually do so, and a suit against the gas company is not a suit against the compress company. Hassell v. Daniels, etc., Steamboat Co., 168 N. C., 296.

The judgment by default and inquiry was rendered at December Term, 3913, and the inquiry was not executed until March Term, 1918. In the meantime, the two attorneys who represented the defendant successively in Richmond County for many years have died.