Puleston v. Alderman

Thomas, J. Suit was brought on a note held by a married woman and, upon demurrer by the defendant, an order was entered by the court sustaining the attack on the pleading because the real plaintiff did not join her husband in the suit. In the same order it was recited by the court that upon announcement of the ruling on the demurrer the plaintiff moved that the declaration be amended, the wife consenting, to show that the suit was brought by “Camilla Puleston, joined by her husband S. Puleston,” the declaration as originally filed having alleged that it was instituted by “Camilla Puleston, by Her Husband and Next Friend, S. Puleston.” *355 This is the only portion of the record necessary to a decision of the prime question presented by plaintiff in error and, although at a glance, it may appear unimportant nevertheless as the case developed in the trial court the determination of the effective date of the revision became vital because it was eventually held by the court that a plea of the statute of limitations was properly filed, the time set out in the statute having elapsed between the dates of the commencement of the suit and the amendment. Thus, if the amendment related back to the time the action was filed the statute of limitation was inapplicable; on the contrary, if it did not the plea was appropriate. At the outset it is well to draw attention to Sec. 4206, Comp. Gen. Laws of Florida, 1927, providing that “it shall be the duty of the court, at any time before the trial of any cause, to order that any person not joined as plaintiff in such cause shall be so joined . . . if it shall appear to such court or judge that injustice will not be done by such amendment . . .; and when such amendment shall have been made, the liability of any person who shall have been so added as co-plaintiff shall ... be the same as if such person had been originally joined in such cause.” Although the language employed in the section just quoted does not expressly state that all amendments relate back to the commencement of the suit, nevertheless, it indicates that purpose, and it is certain that so far as the responsibility of the new plaintiff is concerned they do have that effect. In construing the law relevant to the points in controversy it is but fair to consider in connection with the above quoted law the statute allowing liberal *356 amendments of pleadings and proceedings. Sec. 4295, C.G.L., 1927. It is well, too, to scrutinize the phraseology of the statute of limitations. Its introductory clause and the section relevant are: “Actions other than those for the recovery of real property can only be commenced as follows: 3. Within Five Years. — An action upon any contract, obligation or liability founded upon an instrument of writing not under seal.” Read literally, of course, it is clear that the cause must be instituted within the period fixed. There is no doubt that the original suit was brought well within the time, so the real problem present in this litigation is whether the amendment by the inclusion of the name of the actual. party in interest, the wife, was the commencement of a new suit despite the appearance of her name in the declaration as the one for whom the plaintiff husband was suing. It seems to us that it would require a rather strained construction to hold in this case that the time given in the statute of limitations should be computed from the date of the accrual of the cause of action to the amendment joining the wife as a party plaintiff. ■ We have examined many cases cited in the briefs and have made a search on our own part and from them we are convinced that the criterion recognized in determining the true effective date of an amendment is whether by the revision a new and different cause of action results and whether injustice will be done. This seems to have been recognized as the test where a party was eliminated (Haldeman v. Schuh, 109 Ill. App. 259); where a co-tenant (wife) was joined, even as late as the time of entering judgment (Vunk v. Raritan River R. Co., 56 N. J. Law [27 *357 Vroom] 593); where there was a substitution of parties defendant (Metropolitan Life Ins. Co. v. People, 209 Ill. 42, 70 N. E. 643). In the case of Beresh v. Supreme Lodge Knights of Honor, 99 N. E. 349, the Supreme Court of Illinois decided that in a suit brought by plaintiffs, without authority to act, for the benefit of their assignee an amendment substituting as parties plaintiff the ones to whom the original cause of action accrued was not the introduction of a new cause of action, repeating a former pronouncement of that court in Metropolitan Life Ins. Co. v. People, supra: “ ‘a mere change in a party to a suit does not, of itself, change the cause of action or ground of recovery, and, unless the cause of action is a new one, the amended declaration is not subject to the statute of limitations.’ ” It is to be noted that in the case to which we have just referred there was an actual substitution of parties plaintiff whereas, in the case with which we are dealing, there was no substitution but simply the joining of the wife in the suit which had already been started by the husband in her behalf. Further, as stated in the cited case, the cause of action remained precisely the same, namely, the obligation of the defendant to the wife evidenced by a promissory note. Adverting to the law which we have quoted we iterate its provision that there is a duty on the part of the judge to allow the amendment in the interest of justice and it occurs to us that if the statute of limitations were held applicable in this case it would result in injustice. The purpose and the result of the change in the pleading was simply to allow the litigation to progress in the names of both the party in interest and her *358 husband whereas, before, it had proceeded in the name of the latter as next friend in behalf of the former. The criterion recognized in the decision in Beresh v. Supreme Lodge Knights of Honor, swpra, seems entirely harmonious with expressions of this court on the subject of the effective date of amendments made during trial. In La Fir. Butt. & Co. v. A.C.L. R.R. Co., 63 Fla. 213, 58 So. 186, it was adopted as a general rule that amendments made in the course of the suit “have relation as to the commencement” of it “but relation is not imputed, if it would deprive a party against whom the amendment is made of any substantial right.” This principle was recognized again in Livingston v. Malever, 103 Fla. 200, 137 So. 113. Our study of the record in this case and our consideration of the probable consequences which would result to the parties plaintiff, as well as the party defendant, from the amendment convinces us that the defendant would not suffer the loss of any substantial right by a rule contrary to the one made by the trial court. The very nature of the defense refutes any assertion that it could be a substantial right which would be denied the defendant by the ruling against him. It is a defense that must be pleaded with diligence and which may be waived. It is said that the reason that it must be presented by the defendant is that the “statutes of limitation presuppose an established substantive right, but forbid the plaintiff from enforcing it by the customary remedies.” 34 Am. Jur., Limitations of Actions, Sec. 428. The defendant having failed to show that it was faced with any new cause of action or that any in *359 justice could have resulted from this interpretation, the ruling of the trial court in his favor was erroneous and the matter is reversed with directions to proceed with the controversy in a manner not inconsistent with the views we have expressed. Having arrived at this conclusion, which renders the plea of the statute of limitations useless, there is no need for us to discuss the sufficiency of the plaintiff’s replication to that plea and the defendant’s rejoinder. Reversed with directions as above stated. Brown, C. J., Terrell and Chapman, J. J., concur.