On plaintiff's appeal from an order of the Hudson County Circuit Court discharging rule to show cause. Reversed.
For the plaintiff, Robert H. Doherty.
For the respondent, Collins & Corbin (Edward A. Markley and Charles W. Broadhurst, of counsel).
The opinion of the court was delivered by
PERSKIE, J. This appeal brings up for review an order discharging plaintiff's rule to show cause why a discontinuance filed in this case should not be stricken from the files and decreed for nothing holden.
On notice of the motion below, with the reservation that there was no such action pending as the one herein captioned, and that the court below had neither the jurisdiction nor authority to reinstate the same, or to grant the relief prayed for, it was stipulated and agreed between present counsel for the respective parties that the affidavits of both sides should be considered by the court with the same force and effect as though the facts therein contained were testified to on depositions of the witnesses under said rule to show cause; a like stipulation as to the effect of the affidavits to be used on the return of the rule to show cause, was also made between the same counsel.
These affidavits are presented in full and disclose, substantially, this situation: Paul Koch, attorney of this state, instituted a suit at the Hudson County Circuit Court and erroneously styled or captioned it Harry Martin v. Lehigh Valley Railroad Company.
Notwithstanding the concluding comment of counsel for the defendant "if the defendant had scrutinized the entire complaint and perhaps used its imagination" it would have understood that the party who was seeking to bring the suit was Margaret Jane Martin, widow of Harry Martin, and not Harry Martin, nevertheless, the fact is that the complaint requires very little scrutiny or use of the imagination to determine that it was the widow who was seeking to recover damages for the death of her husband arising out of an accident in Pittston, Pennsylvania. That was obvious; the tenuous argument to the contrary lacks any weight or persuasion.
The complaint sets forth that "plaintiff is the widow of Harry Martin;" "plaintiff's intestate was riding in a car driven by his son * * * the locomotive * * * struck the car in which intestate was riding * * * inflicting injuries upon the intestate which caused his death." "Intestate left surviving him as his next of kin plaintiff * * *." Nothing could be clearer but that an error has been made in the styling or captioning of the cause.
Attorneys for the defendant (by their representative, Mr.
Broadhurst, who had charge of the cause) filed a demand for security for costs. Thereupon the attorney for the plaintiff discovered this error but the Pennsylvania statutory limitation of one year, applicable to the instant suit, had already run. The attorney for the plaintiff prepared and caused to be served an amended summons and complaint and in reply to his communication to the attorneys for the defendant received the following reply:
"The amended summons and complaint was served on us by the sheriff's office, but the point that we raise is that all action on the original suit of Harry Martin v. the Lehigh Valley Railroad Company was stayed when we demanded security for costs in that action. It being stayed you could not file and serve an amended summons and complaint. You could, of course, serve and file an original complaint.
"If you desire to discontinue the case of Harry Martin v. Lehigh Valley Railroad Company without costs, we will consent to the same and abandon our present motion. The second summons and complaint would then be considered an original suit and upon your filing security for costs would proceed as though it was an original suit." (Italics ours.)
Plaintiff's attorney answered:
"Thank you for your letter with respect to the above entitled matter. I will be glad to discontinue the case of Harry Martin and consider the matter of Margaret Jane Martin as the original suit. I am getting the necessary bond for you; will have the same within the next day or so and file it with you." (Italics ours.)
Defendant's attorney replied:
"In view of your willingness as expressed in your letter of December 3d to discontinue the suit of Harry Martin v. the company, we are preparing and send you herewith original and two copies of such discontinuance. If you will sign the original and copy, returning them to ...