Marcel L. Vadenais and Jean M. Vadenais v. Frank E. Christina

Second Circuit

Marcel L. Vadenais and Jean M. Vadenais v. Frank E. Christina

325 F.2d 157, 7 Fed. R. Serv. 2d 268, 1963 U.S. App. LEXIS 3823

CourtCourt of Appeals for the Second Circuit

DecidedNovember 4, 1963

Docket28210_1

StatusPublished

Cited by1 cases

This text of 325 F.2d 157 (Marcel L. Vadenais and Jean M. Vadenais v. Frank E. Christina) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Marcel L. Vadenais and Jean M. Vadenais v. Frank E. Christina, 325 F.2d 157, 7 Fed. R. Serv. 2d 268, 1963 U.S. App. LEXIS 3823 (2d Cir. 1963).

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Opinion

PER CURIAM.

Plaintiffs, husband and wife, appeal from a judgment in favor of defendant upon defendant’s motion for a directed verdict under Rule 50, Federal Rules of Civil Procedure. They also appeal from the denial of their motions under Rules 15 and 21, from the denial of their motion for an immediate appeal under 28 U.S.C. § 1292(b) and from the denial of their motion for an adjournment.

Francis R. Christina, while driving the automobile of his father, Francis E. Christina, collided with the appellants’ automobile. The complaint named Frank E. Christina * as the defendant.

Despite the fact that appellants had ample opportunity to ascertain the facts and to distinguish between owner and operator, a distinct impression is gained from reading the pleadings, the various motion papers, the endless and futile colloquy and the ill-conceived motion to add Frank R. as a party defendant after the New York and New Jersey statute of limitations had run that the intended defendant was the operator, Francis R. In naming the defendant as Frank E., instead of Frank R., a misnomer in caption resulted. The original motion should have been to correct the misnomer, not to add a defendant after the statute of limitations had run. When this motion was, in effect, ultimately made, it should have been granted. See Denver v. Forbes, 26 F.R.D. 614 (E.D.Pa. 1960).

The judgment must, therefore, be reversed and the case remanded for trial with directions that the caption be amended to correct the defendant’s name, “Frank E. Christina” to “Francis R. Christina.”

*

Apparently, the correct names of father and son are Francis E and Francis R., respectively.

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PER CURIAM.

Plaintiffs, husband and wife, appeal from a judgment in favor of defendant upon defendant’s motion for a directed verdict under Rule 50, Federal Rules of Civil Procedure. They also appeal from the denial of their motions under Rules 15 and 21, from the denial of their motion for an immediate appeal under 28 U.S.C. § 1292(b) and from the denial of their motion for an adjournment.

Francis R. Christina, while driving the automobile of his father, Francis E. Christina, collided with the appellants’ automobile. The complaint named Frank E. Christina * as the defendant.

Despite the fact that appellants had ample opportunity to ascertain the facts and to distinguish between owner and operator, a distinct impression is gained from reading the pleadings, the various motion papers, the endless and futile colloquy and the ill-conceived motion to add Frank R. as a party defendant after the New York and New Jersey statute of limitations had run that the intended defendant was the operator, Francis R. In naming the defendant as Frank E., instead of Frank R., a misnomer in caption resulted. The original motion should have been to correct the misnomer, not to add a defendant after the statute of limitations had run. When this motion was, in effect, ultimately made, it should have been granted. See Denver v. Forbes, 26 F.R.D. 614 (E.D.Pa. 1960).

The judgment must, therefore, be reversed and the case remanded for trial with directions that the caption be amended to correct the defendant’s name, “Frank E. Christina” to “Francis R. Christina.”

*

Apparently, the correct names of father and son are Francis E and Francis R., respectively.

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325 F.2d 157, 7 Fed. R. Serv. 2d 268, 1963 U.S. App. LEXIS 3823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcel-l-vadenais-and-jean-m-vadenais-v-frank-e-christina-ca2-1963.

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