Fannie Louise York TEAGUE
v.
ASHEBORO MOTOR COMPANY.
No. 7219SC330.
Court of Appeals of North Carolina.
June 28, 1972.*672 Ottway Burton, Ashevoro, for plaintiff-appellant.
Coltrane & Gavin, by W. E. Gavin, Asheboro, for defendant-appellee, Rabb & York, Inc.
CAMPBELL, Judge.
The facts set forth above show that plaintiff in this case filed a complaint against a party not involved in the alleged tortious incident and not even in existence at the time of the incident. In essence, plaintiff sued the wrong "defendant". Five days after the complaint was filed, the plaintiff's action was barred by the statute of limitations. Sometime thereafter plaintiff discovered her error and attempted to correct it by filing an "Amended Complaint" and having it served on appellee. Appellee raised the defense of the statute of limitations in a motion to dismiss.
There is a serious question as to whether appellee was effectively served with process. We believe that this case can be disposed of on other grounds and therefore do not reach this question.
The question for decision is whether plaintiff can file a complaint against the wrong party and then after the statute of limitations has run, attempt to bring the correct party into the action by a purported amendment of the complaint.
Plaintiff contends that the action was commenced on 20 November 1970 when the original complaint was filed and that the amended complaint served on appellee on 7 December 1970 related back to the original complaint. This would bring the date the action was commenced within three years of the date of injury and it would not be barred by the statute of limitations. Plaintiff contends that the amendment was merely to correct spelling of the name. We do not agree.
Rule 15(a) of the North Carolina Rules of Civil Procedure (N.C.R.C.P.) allows *673 amendment of pleadings under certain stated conditions. G.S. § 1A-1, Rule 15.
Rule 15(c) (N.C.R.C.P.) states the conditions under which a claim asserted in an amended pleading "relates back" to the original pleading. G.S. § 1A-1, Rule 15.
Plaintiff urges upon us the rule of liberality of amendment under the Rules of Civil Procedure. She insists that the amendment was merely a correction of spelling and should relate back to the original complaint.
Plaintiff's argument is without merit. Not only was a misnomer used for appellee's name, but, more importantly, the complaint was served on the wrong party. Appellee Rabb & York, Inc., had no notice of the action until the amended complaint was filed on 7 December 1970. Rule 15(c) provides that a claim asserted in an amended pleading relates back to the original pleading, "unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading." To whom must notice be given? The obvious answer is that the claim asserted in the amendment must be against one given notice in the original pleading of the transactions to be proved. Such notice was not given in this case and we believe that the clear words of the statute prevent the amended complaint from relating back to the original complaint.
While we find no North Carolina cases under the Rules of Civil Procedure on this point, we find a number of Federal cases to which we look for guidance. The established rule is that,
"If the effect of the proposed amendment is merely to correct the name of a party already in court, clearly there is no prejudice in allowing the amendment, even though it relates back to the date of the original complaint. (Citations omitted).
"On the other hand, if the effect of the amendment is to substitute for the defendant a new party, or add another party, such amendment amounts to a new and independent cause of action and cannot be permitted when the statute of limitations has run. (Citations omitted) * * *" Kerner v. Rackmill, 111 F. Supp. 150 (1953). See also Sanders v. Metzger, 66 F. Supp. 262 (1946).
Appellee Rabb & York, Inc. was clearly not in court when the amended complaint was filed. The amendment attempted to substitute Rabb & York, Inc. for the Asheboro Motor Co. (Corp. II), whom the complaint named as defendant and upon whom it was served.
The amended complaint filed in this case does not fall within the rules for relation back to the original complaint. The defense of the statute of limitations was properly raised by a motion to dismiss for failure to state a claim for relief. 1A Barron & Holtzoff, § 281, 2A Moore's Federal Practice, § 12.09; 1 McIntosh, N.C. Practice, § 371 (1970 Pocket Part); Wilson v. Shores-Mueller Co., 40 F. Supp. 729 (1941); and Wright v. Bankers Service Corp., 39 F. Supp. 980 (1941), appeal dismissed, 128 F.2d 865. The trial court was correct in dismissing plaintiff's action.
Affirmed.
MALLARD, C. J., and BROCK, J., concur.