Little v. Virginia & Gold Hill Water Co.

By the Court, Hawley, J.: The complaint in this action alleges: “That the defendant is a corporation, duly organized, and doing business as such, in the State of Nevada.” The sheriff of Storey County certifies that he served the summons “by delivering to the defendant, The Yirginia and Gold Hill Water Company, a corporation, through its superintendent C. Overton, in the County of Storey, * * a copy of said summons attached to a certified copy of the complaint.” A copy of summons, together with a certified copy of the complaint, was also deposited in the post office at Carson City, Nevada, postage paid, directed to Alvinza Hayward, president, and the trustees of the Yirginia and Gold Hill Water Company, at their’ place of business in San Francisco, California. Defendant appeared and filed an answer verified by John Skae, who represented himself as the superintendent of defendant. During the progress of the trial of this cause it appeared from the testimony that there were two corporations of the name of “The Yirginia and Gold Hill Water Company,” doing business in the State of Nevada; one of said corporations, of which Alvinza Hayward was president and C. Over-ton superintendent, being organized under the laws of the state Of California;' the other,| of which John Skae^ was superintendent, being organized under the laws of the State of Nevada. Upon this state of facts plaintiff asked leave of the court to amend his complaint by adding after the word [320] “corporation,” the words “of the state of California.” This was refused, and upon motion of defendant’s counsel the court granted a nonsuit. Plaintiff appeals and claims that this action of the court was erroneous.' The allegation that the defendant is a corporation, duly organized and doing business as such in the State of Nevada, is equivalent to an averment that defendant i& a corporation, duly organized in the State of Nevada. This proposition is sustained by every canon of construction, legal and grammatical, and is, we think, too plain to leave any room for legitimate argument or controversy. Defendant would not be a corporation unless it had been duly organized as such. The averment that it was a corporation was sufficient. The place of its organization was immaterial. But plaintiff having designated the place, the question arises whether or not he is concluded by such an averment from so amending his complaint as to make the California corporation defendant. It is admitted that an amendment which changes the parties to a suit cannot be made. Plaintiff’s counsel contends that inasmuch as the summons was served upon the California corporation, plaintiff had the right, under the provisions of section 68 of the Practice Act, to so amend his complaint as to .insert the true name of defendant. This would be true in a case of misnomer; but this is not such a case. Here there are two corporations of the same name — one organized in California, the other in the State of Nevada. The plaintiff has a cause of action against the California corporation, but none against the Nevada corporation. In his complaint he designates as defendant the Nevada corporation; and after this defendant had appeared and filed its answer, denying specifically each and every allegation in plaintiff’s complaint, the trial proceeds, and during its progress plaintiff ascertains that he has brought the wrong corporation into court, and without any further showing, by affidavit or otherwise, moves to so [321] amend his complaint as to designate as defendant the California corporation, against which he ought to have brought his suit in the first instance. Does not this fact show conclusively that the effect of allowing the amendment would be to change the party defendant in the suit ? The service of the summons upon the corporation that ought to have been made defendant does not change the legal aspect of the question before the Court. The corporation served saw fit. not to appear, because it was not named as a party defendant. The defendant need not have appeared because it was not served with process; but after the complaint was filed it had the right to appear in the action without the service of the summons, and having so appeared, and the court having thereby acquired jurisdiction, we are called upon, under the peculiar facts of this case, to decide the legal status of the parties thus in court. We cannot investigate the motives that prompted defendant’s action, nor consider the hardship, if any, resulting to plaintiff therefrom. As the amendment would have substituted a new party defendant in the action, the court did not err in refusing it. The nonsuit was properly granted, because upon plaintiff’s own showing he had no cause of action against the defendant. The judgment of the district court is affirmed.