Allen v. Philadelphia, Baltimore & Washington Railroad

102 A. 985, 30 Del. 88, 7 Boyce 88, 1918 Del. LEXIS 17

• Court: Superior Court of Delaware
• Decided: February 8, 1918
• Docket: Summons Case No. 3
• Status: Published

Opinion

Boyce, J.,

delivering the opinion of the court:

The matter in abatement set up by the plea in abatement is that the defendant is mis-named. As a general rule an action should not be abated on the ground of a mere misnomer, and especially so when, as in this case, the defendant is clearly identified. The plaintiff asks leave to amend by prefixing the word “The” before the name of the defendant as sued so that its right name given by the plea in abatement may appear on the record and in the pleadings. Since it is manifest that no prejudice will result, the amendment should be allowed.

It appears from the docket entries in the case of Lapham and Son v. P., B. & W. R., 4 Pennewill, 421, 56 Atl. 366, though not shown in the report, that after the demurrer to the plea in abatement had been overruled, an amendment was allowed by striking out the word “The” from the name of the defendant as sued.

In the case of Hughes v. Diamond Match Co., 1 Pennewill, 140, 39 Atl. 772, the action was against the defendant, mistakenly described as a corporation of the State of Connecticut instead of the State of Illinois. Plaintiff subsequently moved to amend his declaration by striking out the word “Connecticut” wherever the same occurred therein, and substituting in lieu thereof the word “Illinois.” The motion was disallowed for the reason, it was said, the amendment would make a new and distinct party.

Where a mere misnomer either of the plaintiff or defendant, such as in this case, is truly pleaded, the plaintiff may in general amend his declaration. 1 Chit. Plead. *463.

The motion to amend is allowed.