Zackery v. Mutual Security Savings & Loan Ass'n

District of Columbia Court of Appeals

Zackery v. Mutual Security Savings & Loan Ass'n

206 A.2d 580, 1965 D.C. App. LEXIS 146

CourtDistrict of Columbia Court of Appeals

DecidedJanuary 26, 1965

DocketNo. 3554

StatusPublished

Cited by3 cases

This text of 206 A.2d 580 (Zackery v. Mutual Security Savings & Loan Ass'n) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Zackery v. Mutual Security Savings & Loan Ass'n, 206 A.2d 580, 1965 D.C. App. LEXIS 146 (D.C. 1965).

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Opinion

MYERS, Associate Judge.

On March 12, 1964, appellant, Mamie Zackery, filed a complaint seeking damages for personal injuries which she sustained on March 16, 1961, in an apartment building owned and operated by Wayne Investment Corporation, a wholly owned subsidiary of Mutual Security Savings and Loan Association, Inc. The complaint designated “Charles A. Doeter, Trustee in Bankruptcy, Mutual Security Savings & Loan Association” as the sole defendant and demanded judgment against Doeter in his capacity as trustee.¹ After he was personally served with copies of the summons and complaint, Doeter moved to dismiss on the grounds that leave of the Maryland Bankruptcy Court was necessary to file suit against the trustee and that the claim was not in any event provable in the bankruptcy proceedings. On May 26, 1964, after the statute of limitations2 had run to bar appellant’s action, she filed an Opposition to the Motion to Dismiss and at the same time filed an amended complaint designating “Mutual [582]*582Security Savings and Loan Association, Inc. (Wayne Investment Corporation)” as the defendant.³ Docter was not named in that complaint, but having been personally served, again in his capactiy as trustee, he moved to dismiss the amended complaint on the grounds that leave of the trial court was not obtained before amending and that an additional party (Mutual Security Savings and Loan Association, Inc.) was added upon which personal service was required. After argument, the trial judge dismissed the cause of action, and this appeal ensued.

As appellant failed to seek leave of the trial court before filing her amended complaint, the question presented is whether that complaint, instead of merely correcting a misnomer in the original complaint, dropped one defendant and added another. Under Rule 15(a) of the Rules of the District of Columbia Court of General Sessions, a party may amend his pleadings once as a matter of course at any time before a responsive pleading is served.⁴ An amendment to a complaint, however, which adds or drops a party requires an ■order of the trial court, as specified in Rule 21 of the same rules, regardless of whether it precedes or follows the first responsive -pleading of any defendant. Pacific Gas & Electric Co. v. Fibreboard Products, 116 F.Supp. 377, 382 (N.D.Cal.1953) ⁵ Rule 15 {a) refers in general terms to changes in the pleadings by amendment, while Rule 21 refers specifically to changes brought about by adding or dropping parties. “Any conflict or ambiguity which results from a comparison of the two rules must be resolved in favor of the specific and against the general. Thus, when a proposed amendment to a complaint seeks to effect a change in the parties to the action, Rule 21 * * * controls, and, to that extent, limits Rule 15(a) * * * ” Id. at 382-383.

We think it clear that the amended complaint before us effected a change in the parties defendant. The original complaint embraced only the trustee in bankruptcy for the Mutual Security Savings and Loan Association, Inc., while the amended complaint was brought and sought judgment against the bankrupt corporation. Since the trustee in bankruptcy and the bankrupt have distinct legal personalities, complaint against and personal service upon the trustee do not bring the bankrupt before the trial court. Appellant was dropping one defendant, Charles A. Docter, Trustee, and adding another, Mutual Security Savings and Loan Association, Inc., and should, accordingly, have sought judicial leave to make the amendment. It is apparent, therefore, that the amended complaint was not properly filed and dismissal of the cause of action was not error.

Affirmed.

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MYERS, Associate Judge.

On March 12, 1964, appellant, Mamie Zackery, filed a complaint seeking damages for personal injuries which she sustained on March 16, 1961, in an apartment building owned and operated by Wayne Investment Corporation, a wholly owned subsidiary of Mutual Security Savings and Loan Association, Inc. The complaint designated “Charles A. Doeter, Trustee in Bankruptcy, Mutual Security Savings & Loan Association” as the sole defendant and demanded judgment against Doeter in his capacity as trustee.¹ After he was personally served with copies of the summons and complaint, Doeter moved to dismiss on the grounds that leave of the Maryland Bankruptcy Court was necessary to file suit against the trustee and that the claim was not in any event provable in the bankruptcy proceedings. On May 26, 1964, after the statute of limitations2 had run to bar appellant’s action, she filed an Opposition to the Motion to Dismiss and at the same time filed an amended complaint designating “Mutual [582]*582Security Savings and Loan Association, Inc. (Wayne Investment Corporation)” as the defendant.³ Docter was not named in that complaint, but having been personally served, again in his capactiy as trustee, he moved to dismiss the amended complaint on the grounds that leave of the trial court was not obtained before amending and that an additional party (Mutual Security Savings and Loan Association, Inc.) was added upon which personal service was required. After argument, the trial judge dismissed the cause of action, and this appeal ensued.

As appellant failed to seek leave of the trial court before filing her amended complaint, the question presented is whether that complaint, instead of merely correcting a misnomer in the original complaint, dropped one defendant and added another. Under Rule 15(a) of the Rules of the District of Columbia Court of General Sessions, a party may amend his pleadings once as a matter of course at any time before a responsive pleading is served.⁴ An amendment to a complaint, however, which adds or drops a party requires an ■order of the trial court, as specified in Rule 21 of the same rules, regardless of whether it precedes or follows the first responsive -pleading of any defendant. Pacific Gas & Electric Co. v. Fibreboard Products, 116 F.Supp. 377, 382 (N.D.Cal.1953) ⁵ Rule 15 {a) refers in general terms to changes in the pleadings by amendment, while Rule 21 refers specifically to changes brought about by adding or dropping parties. “Any conflict or ambiguity which results from a comparison of the two rules must be resolved in favor of the specific and against the general. Thus, when a proposed amendment to a complaint seeks to effect a change in the parties to the action, Rule 21 * * * controls, and, to that extent, limits Rule 15(a) * * * ” Id. at 382-383.

We think it clear that the amended complaint before us effected a change in the parties defendant. The original complaint embraced only the trustee in bankruptcy for the Mutual Security Savings and Loan Association, Inc., while the amended complaint was brought and sought judgment against the bankrupt corporation. Since the trustee in bankruptcy and the bankrupt have distinct legal personalities, complaint against and personal service upon the trustee do not bring the bankrupt before the trial court. Appellant was dropping one defendant, Charles A. Docter, Trustee, and adding another, Mutual Security Savings and Loan Association, Inc., and should, accordingly, have sought judicial leave to make the amendment. It is apparent, therefore, that the amended complaint was not properly filed and dismissal of the cause of action was not error.

Affirmed.

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206 A.2d 580, 1965 D.C. App. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zackery-v-mutual-security-savings-loan-assn-dc-1965.

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