Pennsylvania Railroad v. Smith Coal Co. , 1925 Pa. Dist. & Cnty. Dec. LEXIS 136 ( 1925 )

Langham, P. J.,

In this case the defendant company was sued and summons served upon one of the members thereof as a corporation; whereas, as a matter of fact, it is now admitted that no such corporation ever existed, but that the Smith Coal Company, consisting of Isaac R. Smith, Richard C. Smith and William B. Smith, was doing business as a partnership. When that fact was ascertained, counsel for plaintiff made a motion to amend, designating the defendants as a partnership; at the same time a rule was issued to show cause why the amendment should not be allowed, and at the same date praecipe for alias summons was filed and alias summons issued and served upon the Smith Coal Company, a partnership. Later a rule was granted against plaintiff to show cause why the alias summons should not be stricken off.

Our duty to this ease at this time is to determine whether the rules herein-before referred to were improvidently granted and issued.

It is admitted by the plaintiff that the action in assumpsit was originally brought against and summons served on a non-existent corporation. That being the case, an amendment substituting an individual name or names as partners, trading under a trade name similar to the corporation, as parties defendant, would be an amendment introducing new parties to the record, which proceeding cannot be allowed: Markowitz v. Ararat Dye Works, 73 Pa. Superior Ct. 129.

The effect of such an amendment as asked for by plaintiff is not to correct the name or names under which the right party is sued; its effect, if allowed, would be to bring a new party defendant on the record, to wit, a partnership instead of a corporation: White Co. v. Fayette Automobile Co., 43 Pa. Superior Ct. 532.

Under the authorities as we have found touching this question, the rule to amend will be discharged.

That brings us to a consideration of the rule to show cause why the alias summons should not be stricken off. In view of what we have indicated as to discharging the rule to amend, we conclude that the defendants are not in court and cannot be brought into court by discharging the rule and directing or allowing service of an alias summons. An alias writ of summons is simply a second writ issued in the same cause and against the same parties. How can it be said that an alias summons would be good against defendants in a suit where no original summons had ever been issued? Actions at law must be started by original processes and not by alias writs. In the case at bar, if the amendment falls, the alias summons can stand upon no higher ground and must also fall.

We are of the opinion that the proper remedy for the plaintiff in this case is to discontinue its action and bring a new action against the partnership.

Order of court.

And now, March 27, 1925, this case came on to be heard by argument of counsel, and upon due consideration thereof, the rule to show cause why the praecipe, record and statement of claim should not be amended as set' forth in plaintiff’s motion filed Jan. 7, 1924, is hereby discharged. It is further ordered and directed that the rule on the plaintiff to show cause why the alias summons should not be stricken off is hereby made absolute.

An exception to this order and decree is allowed plaintiff.

Prom James L. Jack, Indiana, Pa.