Oetzel v. Martin
Oetzel v. Martin
Opinion of the Court
If the defendant is correct in either of his contentions, the judgment of the Court of Appeals must be reversed and that of the Court of Common Pleas affirmed.
At the beginning of the trial and again at the conclusion of the plaintiff’s evidence, the defendant renewed his original objection to the permission granted to the corporation to be substituted as the party plaintiff.
“In every civil action the party complaining shall be known as the plaintiff and the adverse party as the defendant. The title of a cause shall not be changed in any of its stages.”
The Court of Appeals expressed the view that the caption of the cause should remain unchanged although the original party plaintiff Oetzel disappeared therefrom and the corporation was substituted in his stead.
Reliance was placed on the following provisions of Section 11363, General Code (Section 2309.58, Revised Code):
“Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may 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 * * * when the amendment does not substantially change the claim or defense * * *.”
Likewise cited were the decisions of this court in the cases of Lake Shore & Michigan Southern Ry. Co. v. City of Elyria, 69 Ohio St., 414, 69 N. E., 738, and Van Camp v. McCulley, Trustee, 89 Ohio St., 1, 104 N. E., 1004. However, a study of the facts in those cases discloses their inapplicability to the instant, situation. In the opinion in the Elyria case appears the following pertinent comment:
“This case presents a very fair illustration of the proper exercise of such authority. While the suit was instituted with the title of ‘Frank M. Stevens, as City Solicitor of the City of Elyria, and as a taxpayer,’ it was so instituted on behalf of the city of Elyria as the real party in interest, and an inspection of the original petition shows that the facts alleged are facts in which the city alone is interested, as a trustee of
The Van Gamp case was an action instituted by a creditor of an insolvent corporation on behalf of himself and other creditors to compel payment of money due on unpaid stock subscriptions. During the pendency of the action, a trustee in bankruptcy was appointed. The court then simply permitted the trustee to be substituted for the original plaintiff for the purpose of prosecuting the action to its conclusion.
The authority of a court to permit such amendments is not unlimited. As summarized in 39 American Jurisprudence, 967, Section 99, the two tests ordinarily applied are, first, whether the same evidence will support both petitions, and, second, whether the same measure of damages will apply to both.
In the instant case the trial court did not merely strike out one of a number of parties plaintiff or add a new party thereto. Instead, the court struck out the only original party plaintiff and substituted another. Furthermore, the original party plaintiff had no interest in the claim for damage to the automobile, and the new corporate party plaintiff, of course, had no interest in the claim for personal injuries or the claim for damage to the clothing of the original party plaintiff. The difference in the claims of the two parties
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.