Evans v. Humes Truck Co.

138 N.E.2d 179, 73 Ohio Law. Abs. 447, 1954 Ohio Misc. LEXIS 350

• Court: Court of Common Pleas of Ohio, Franklin County, Civil Division
• Decided: September 16, 1954
• Docket: No. 190140
• Status: Published

Opinion

OPINION

By BARTLETT, ,T.

MOTION BY HUMES TRUCK AND TRAILERS MANUFACTURING COMPANY, INC., FOR AN ORDER QUASHING THE ALIAS SERVICE OF SUMMONS UPON SAID COMPANY AND SETTING ASIDE THE RETURN THEREOF, ON THE GROUND THAT SAID COMPANY IS NOT NAMED AS A PARTY DEFENDANT IN THE PETITION, BUT INSTEAD “THE HUMES TRUCK CO.,” IS NAMED A PARTY DEFENDANT IN SAID PETITION.

SAID MOTION IS HEREBY SUSTAINED, BUT LEAVE IS GRANTED PLAINTIFF TO AMEND THE PETITION ON ITS FACE TO CORRECT DEFECT IN THE INTENDED NAME OF THE DEFENDANT COMPANY AND TO ISSUE ANOTHER ALIAS SUMMONS THEREON.

“Generally speaking, defects and objections to parties are of a dilatory nature which, in order to be available, must be raised at the earliest opportunity.” 39 O. Jur. Parties, Sec. 77, p. 808.

The petition should not “be dismissed for want of parties, if, by any mode or construction known to the Code, the persons alleged to be interested can be compelled to appear.” 30 O. Jur. Parties, Sec. 79, p. 813.

“The liberal provisions of the statute governing the amendment of pleadings permit a misnomer to be corrected by amendment.”

The petition and the alias summons show plainly that a mistake was made in naming the party defendant intended. It has been called to the Court’s attention at the earliest opportunity by the company served with process, which is proper. The defect should be remedied in the simplest and most convenient manner consistent with the purpose of the liberal code of Civil Procedure in Ohio.

The motion to quash service of the alias summons on company named therein and to set aside return thereof is sustained.

However, in the furtherance of justice and upon the payment by the plaintiff of the costs incurred due to such defective naming of the intended party defendant in the petition, the Court sisa sponte, under the authority of §2309.58 K. C., grants plaintiff leave to amend the petition upon its face correcting the name of the party defendant intended, and thereupon orders an alias summons to issue upon the filing by the plaintiff of a precipe requesting the same to issue.

If the plaintiff desires to so amend, an entry shall be filed setting forth the above order, and thereupon counsel for plaintiff shall make said amendment on the face of the petition. Exceptions by both counsel for plaintiff and The Humes Truck and Trailer Manufacturing Company, Inc.