Opinion
Docket No. 55, Calendar No. 41,662.
Submitted October 15, 1941.
Decided December 2, 1941.
Appeal from Wayne; Webster (Arthur), J. Submitted October 15, 1941. (Docket No. 55, Calendar No. 41,662.) Decided December 2, 1941.
Assumpsit by Ralph C. Miller and others against Judson Bradway on a promissory note. Motion to quash denied. Plaintiffs' motions to amend, granted. Defendant appeals. Orders affirmed and cause remanded for further proceedings.
Sigmund A. Robinson, for plaintiffs.
John W. Hoag, Jr., for defendant.
This is an appeal by defendant from denial of his motion to quash the summons served upon him and dismiss the case and from amendments allowed.
The facts are stated in the settled record as follows:
"On the 14th day of August, 1940, a praecipe was filed with the clerk of the circuit court for the county of Wayne, requesting that a writ of summons issue in a cause entitled 'Miller, Bailey Company, plaintiff, v. Judson Bradway, defendant.' A summons so entitled and advising Judson Bradway, the above-named defendant and appellant, that a suit had been commenced against him by 'Miller, Bailey Company, as plaintiff' was on the same day issued and served on the said defendant and appellant.
"On the 20th day of August, 1940, a declaration was filed and a copy of the same subsequently served on the defendant and appellant, which declaration was similarly titled and set forth that the plaintiff was a copartnership composed of Ralph C. Miller, James I. Bailey, John L. Busch, E.T. Stringer, R.W. Rannie and C.J. Lehman; that the action was brought on a certain promissory note for $1,446.79, executed and delivered by Judson Bradway to Miller, Bailey Company, May 15, 1934, and payable three months after date, August 15, 1934, which was six years less one day prior to the issuance of the above described summons.
See 3 Comp. Laws 1929, § 13976 (Stat. Ann. § 27.605). — REPORTER.
"The defendant and appellant appeared specially for the purpose of moving to quash the praecipe and summons and quash the service of process and dismiss the suit, in support of which motion the affidavit of Judson Bradway, the said defendant and appellant, was filed setting forth 'that deponent did not know the nature of said Miller, Bailey Company, but had been advised that the same was a partnership, but if a partnership, deponent did not know who were the partners, deponent not having received any consideration for any note or notes executed in favor of Miller, Bailey Company, whoever they might be, but having executed said note or notes under threat of legal proceedings; that the said legal proceedings were without merit, but at that time the economic depression had given rise to extreme pressure on deponent from many sources and deponent signed said note or notes without regard to the merits of the claim of Miller, Bailey Company and without even knowing who composed said Miller, Bailey Company.'
"Subsequently, but prior to the hearing of this motion, the plaintiff filed a motion to amend the title of the cause to read as the same appears above and to add certain parties plaintiff, filing in support thereof the affidavit of one Charles White, an attorney employed in the office of the plaintiff's attorney, setting forth that at the time he started suit, he did not know the names of all the persons composing the copartnership, but had started the suit anyhow because the statute of limitations would soon bar the action.
"The two motions came on for hearing on the same day. Plaintiff's motion to amend was assigned to Judge Arthur Webster and defendant's motion to quash to Judge Clyde I. Webster. Plaintiff's motion to amend was heard first and granted. The reasons given by said Hon. Arthur Webster being that the suit was brought upon a promissory note made by the defendant, payable to Miller, Bailey Company, a copy of which is set out in the plaintiff's declaration; that the defendant who signed the note cannot be said to be misled in any way by the suit; that the defendant not having been misled, the court has power, under the statute of amendments, to allow an amendment to show the names of the individuals composing Miller, Bailey Company.
"The motion to quash was then argued before Judge Clyde I. Webster, who entertained some question as to whether the motion filed by plaintiff to amend the title of the cause was broad enough to cover the praecipe and summons and held his decision on said motion in abeyance to give plaintiffs an opportunity to file a second motion to amend which was subsequently done. This motion was heard before Judge Arthur Webster, and granted, the court stating that it was his opinion that the statute of amendments was sufficient to, and intended to, cover a situation of the kind here presented and it was the court's intention to permit plaintiff to amend in such fashion that he would be in court under the statute of amendments. An order was thereupon entered amending, nunc pro tunc, the praecipe, summons, declaration and calendar entries so as to show the names of the individuals composing the copartnership conducted under the name Miller, Bailey Company."
Permissible amendments are discretionary with the court having jurisdiction of the parties in a pending suit. The amendments allowed were permissible. 3 Comp. Laws 1929, § 14144 (Stat. Ann. § 27.838.)
The orders of the circuit court are affirmed, with costs to plaintiff, and the cause remanded to the circuit court for further proceedings.
SHARPE, C.J., and BUSHNELL, BOYLES, CHANDLER, NORTH, STARR, and BUTZEL, JJ., concurred.