Comrey v. East Union Township

51 A. 1025, 202 Pa. 442, 1902 Pa. LEXIS 541

• Court: Supreme Court of Pennsylvania
• Decided: May 5, 1902
• Docket: Appeal, No. 401
• Status: Published

Opinion

Opinion by

Mr. Justice Mitchell,

It was decided in East Union Twp. v. Ryan, 86 Pa. 459, that the holder of an order upon the township treasurer, by the commissioners of the state road under the act of April 7, 1873, could not sue in his own name, although the order was drawn to the contractor “ or bearer.” As that decision was upon an order in the same form and under the same statute, there is no room for distinction and it is conclusive in the present case. None of the subsequent decisions on the same act have any bearing on this point.

There was therefore no suit in which any recovery could be had against defendant on these orders until 1901, twenty-seven years after their date, and twenty-six years after the issue of the summons in this case. The new plaintiff then introduced was the legal party in whose right recovery must be had if at all, and he was long barred by the statute of limitations. The amendment putting him on the record was therefore in serious derogation of the defendant’s right and should not have been allowed.

It may be observed that this amendment appears to have been allowed without notice to defendant. Even if the amendment was in itself proper, this was erroneous practice. No amendment which is more than merely formal should be allowed 'without notice.

Judgment reversed.