On appeal from the Supreme Court.
For the plaintiffs-appellants, Edmund A. Hayes.
For the defendant-respondent, Charles B. Clancy.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This is an appeal from an order of the Supreme Court, Middlesex County Circuit, denying application of the plaintiffs below, appellants here, to amend the summons and complaint.
The facts are stipulated. It appears that the plaintiffs, husband and wife, brought suit for damages arising out of a collision between an automobile driven by Mrs. Coventry and
an automobile of the Lightning Service Company, then being operated in a negligent manner, as is alleged, by its employe, Herbert Barrington.
The plaintiff husband demanded compensation for the damage done the automobile, for the expenses incurred by his wife's illness, and for loss of her services. Mrs. Coventry sought damages for the personal injuries she suffered.
When suit was instituted by these plaintiffs, the defendant company was designated in the process and pleadings as "Lightning Service Co., a corporation." As a matter of fact it was not a corporation. It was a partnership consisting of two individuals doing business under a trade name. The motion was to amend the summons and complaint by substituting for the designation "Lightning Service Co., a corporation" the names of the individuals, Benjamin Nadelberg and Albert Richman, trading as Lightning Service Company, as defendants. At the time the application for the amendment was made by the plaintiffs more than three years had elapsed from the time of the occurrence upon which the action was founded. Consequently, if the proper party defendant was not then in court, no action could be successfully prosecuted for damages that arose out of the personal injuries because of the bar of the statute of limitations. 3 Comp. Stat., p. 3164, § 3.
The learned trial judge signed an order denying the application to amend "because the effect of the same would be to add a new party after the statute of limitations had run."
The theory of the appellants' argument for a reversal of the order is that the amendment sought was one of form rather than substance. We cannot accede to this proposition.
The point is made that Nadelberg was actually served. As to this, the stipulation of facts informs us that the sheriff made a return, that he served the summons and complaint "upon Lightning Service Company, a corporation, by delivering a true copy thereof to B. Nadelberg, Registered Agent * * *." This service was in effect a nullity. No such entity was existent. That being so, it follows that Nadelberg could not, in the ...