Bennett v. Dayton Memorial Park & Cemetery Ass'n , 87 Ohio App. 123 ( 1949 )

This case is submitted on motion of the defendant, appellee, The Winters National Bank Trust Company of Dayton, to dismiss the appeal of the Ohio Liquidating Company.

The motion is grounded on the fact that the Ohio Liquidating Company was substituted as a party to the action in the place of the Stockholders Realization Corporation by entry made by the Common Pleas Court after judgment was entered. The entry provided that the order of substitution should be entered nunc pro tunc as of November 7, 1944, which was prior to the date of the judgment.

The contention of counsel for the bank is that only parties to the action are entitled to file an appeal from a judgment; that the judgment terminates the action; that any attempt on the part of the court to substitute a party after judgment is a nullity and that such substituted party has no right to take an appeal from the judgment. Counsel also contends that Section 11261, General Code, which provides for substitution of parties, gives the court authority to make substitution only while the action is pending and prior to judgment. We do not agree. Section 11261, General Code, in part provides as follows: "On any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted for him." There is no time limitation mentioned in this section within which the court may act. But we are also required to observe the provisions of Section 11363, General Code, which provides, in part, as follows: "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 * * *." Under this section an amendment which is allowable may be made at any stage of the proceedings. It may be made after judgment as well as before judgment. However, after judgment the court should exercise its authority with caution in furtherance of justice. It therefore becomes immaterial that the entry substituting the Ohio Liquidating Company for the Stockholders Realization Corporation was enterednunc pro tunc. In support of the proposition that the court may exercise such power under Section 11363, General Code, after judgment, the court cites the following authorities:Henry v. Jeans, 48 Ohio St. 443, 28 N.E. 672; Industrial GasCo. v. Jones, 62 Ohio App. 553, 24 N.E.2d 830; 30 Ohio Jurisprudence, 800, Parties, Sections 71, 73; 31 Ohio Jurisprudence, 944, Pleadings, Sections 338, 339, 348.

Motion to dismiss will be overruled.

Motion overruled.

MILLER, P. J., and HORNBECK, J., concur.