concurring.
This concurring opinion is occasioned by the filing of a dissenting opinion for publication. Its purpose is to set forth the position that led the majority of the court to vacate its order granting review of the decision reached by the Court of Appeals.
In Modern Bakery, Inc. v. Brashear, Ky., 405 S.W.2d 742 (1966), a wrongful-death action, when suit was filed the order appointing the plaintiff as administrator of the decedent’s estate had not been entered. Hence the plaintiff had no legal capacity to bring the action. After the one-year statute of limitations (KRS 413.140) had run, the defendants moved to dismiss on the ground of the plaintiff’s incapacity. The motion was granted with leave to amend the complaint, whereupon the plaintiff amended his complaint to show that the order appointing him as administrator had been duly entered in the meantime. This court held that under CR 15.03 the amendment related back to the original filing of the action and that the intervention of the statute of limitations was not a valid defense.
The only difference between that case and this one is that instead of an amended complaint the plaintiffs sought to proceed by motion for a substitution of parties. Certainly the revivor statute, KRS 395.278, is analogous to the statute of limitations in that it prescribes a period of time in which an action must be revived, just as the stat-, ute of limitations prescribes a period of time in which an action must be filed. Each relates to the time in which a step must be taken in court. If it be said that KRS 395.278 has no mechanism to “relate back,” neither does KRS 413.140.
In both this case and in Modern Bakery a suit was pending at the time the statute of limitations would otherwise have barred it. In Modern Bakery the order appointing the administrator had not been entered. In this case it had been entered in the wrong court. So in each instance the plaintiff had no capacity to sue, and in each instance that defect was remedied after the statute had run but while the suit was still pending. The only distinction between the two is that in Modern Bakery the rectifying step in the pending suit took the form of an amended complaint, a pleading, whereas in this case it was taken by a motion. Though a motion is not a pleading, and technically, is not covered by CR 15.03, the spirit and purpose of the rule is the same for each. As a matter of fact, a motion tendering an amended complaint setting up the new appointment might have served just as well. To draw a distinction on the hypertechnical basis that the corrective step took the form of a motion rather than a pleading would simply exalt form over substance and would *38not be m keeping with the fundamental philosophy of the Civil Rules.