McLean v. Matheny , 240 N.C. 785 ( 1954 )

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84 S.E.2d 190 (1954) 240 N.C. 785
Charles McLEAN, Sr.
v.
W. B. MATHENY, t/a Matheny Motor Company.
No. 307.
Supreme Court of North Carolina.
October 20, 1954.
*191 W. H. Strickland, Lenoir, for appellant.

C. H. Gover, Charlotte, for appellee.

DENNY, Justice.

It would seem to be unfortunate that this action has not been disposed of heretofore on its merits. However, we are bound by the record now before us and may consider only the question of law presented for determination.

This appeal turns on whether the cause of action against the corporate defendant dates from the time summons was issued and served upon it, or whether such service relates back to the commencement of the action.

Ordinarily, under the comprehensive power to amend process and pleadings where the proper party is before the court, although under a wrong name, an amendment will be allowed to cure a misnomer. Lane v. Seaboard & R. R. Co., 50 N.C. 25; Fountain v. Pitt County, 171 N.C. 113, 87 S.E. 990; Chancey v. Norfolk & W. R. Co., 171 N.C. 756, 88 S.E. 346; Cabarrus County Drainage District No. 2 v. Board of Com'rs of Cabarrus County, 174 N.C. 738, 94 S.E. 530; Gordon v. Pintsch Gas Co., 178 N.C. 435, 100 S.E. 878; Chowan County v. Com'r. of Banks, 202 N.C. 672, 163 S.E. 808; Clevenger v. Grover, 212 N.C. 13, 193 S.E. 12, 124 A.L.R. 82; Lee v. Hoff, 221 N.C. 233, 19 S.E.2d 858; Propst v. Hughes Trucking Co., 223 N.C. 490, 27 S.E.2d 152; Blue Ridge Electric Membership Corp. v. Grannis Bros., 231 N.C. 716, 58 S.E.2d 748; Bailey v. McPherson, 233 N.C. 231, 63 S.E.2d 559; 39 Am.Jur., Parties, section 125, page 1004.

In the instant case, however, the motion of the plaintiff was not to cure a misnomer by substituting the correct name of a proper party who was before the court in lieu of the purported partnership. On the contrary, the motion was to make the *192 defendant corporation an additional party and to file an amendment to the complaint. Therefore, under our decisions, the cause of action, in so far as it relates to the corporate defendant, dates from 20th November, 1953. Camlin v. Barnes, 50 N.C. 296; Plemmons v. Southern Improvement Co., 108 N.C. 614, 13 S.E. 188; Bray v. Creekmore, 109 N.C. 49, 13 S.E. 723; Jones v. Vanstory, 200 N.C. 582, 157 S.E. 867; Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789; Blue Ridge Electric Membership Corp. v. Grannis Bros., supra; Bailey v. McPherson, supra. Cf. Home Real Estate, Loan & Insurance Co. v. Locker, 214 N.C. 1, 197 S.E. 555. And as held in Plemmons v. Southern Improvement Co., supra, if the plaintiff had moved in the court below to substitute the Matheny Motor Company, Inc., in lieu of the purported partnership, the court could not have brought the corporation in as a party defendant without its consent, either expressed or by entering a general appearance, except by causing summons to be served upon it. Hence, if such motion had been made and granted, the status of the plaintiff, with respect to the plea of the statute of limitations, would not have been changed.

It follows, therefore, that since more than three years elapsed after the plaintiff's cause of action arose before the corporate defendant was made a party to the action and served with summons, such action was barred by the three-year statute of limitations, G.S. § 1-52, duly pleaded by said corporate defendant. Hence, the ruling of the court below must be upheld.

Affirmed.