specially concurring.
Although I agree that the judgment below should be reversed, I do so because I think the amended complaint was filed within the three-year statute of limitations for wrongful death. 30.020(1).1 I disagree strongly with the majority’s attempt to rewrite that statute; if disposition of this case depends on the meaning of the statute, I would affirm.
I
First, my reasons for disagreement. The majority appears to assume that upon the “wrongful” death of a person, a personal representative pops into being like a genie, and the statute of limitations commences to run only from the time the personal representative discovers, or reasonably should have discovered, that the negligence of the defendant caused the decedent’s death. Of course, no genie does appear, either from an urn or from the firmament. Someone must take steps to have a personal representative appointed and there is no requirement that one be appointed; neither is there a time limit within which one may be appointed.
The majority apparently would read the statute to mean that until there is a personal representative duly appointed, the limitation period does not commence to run; apparently, it would be tolled. For example, if the surviving spouse, a person for whose benefit an action may be brought, has all of the information necessary to cause the limitation period to commence, but does nothing until several years after the death when she is appointed the personal representative, when does the statute commence? If *53the majority’s answer is that the surviving spouse’s knowledge is the knowledge of that person as the personal representative, it ignores the separate legal status of a fiduciary. But even if we pass that problem, the statutory beneficiaries could have anyone, not disqualified under ORS 113.095, appointed who has no knowledge of the defendant’s negligence in causing the decedent’s death. In that case, the limitation period would not commence until that unknowledgeable personal representative discovers, or reasonably should have discovered, defendant’s negligence.
Furthermore, suppose the personal representative, although promptly appointed, is a corporate fiduciary. To whom within that fictitious entity do we look to determine when he, she, they or it reasonably should have known of defendant’s negligence? Would it have an affirmative fiduciary duty to investigate the circumstances of the decedent’s death? Would the standard be the same for a corporate fiduciary as for a member of decedent’s family in determining when it should reasonably have discovered defendant’s negligence? If so, may it be held liable for breach of fiduciary duty if it failed to do so within the time limit?
Much more could, but need not, be said concerning the mischief which would result from the majority’s rewrite of the statute. It is apparent that the legislature recognized the problems and enacted the statute as it did, limiting the period within which to bring the action to “three years after the occurrence of the injury causing the death of the decedent.” ORS 30.020(1). Allowing three years to bring an action for a cause which would, but for the death of the injured person, be required to be brought within two years (ORS 12.110) is consistent with the one-year extension of the statute of limitations generally applicable to claims against the decedent’s estate which are not barred on the date of death of the decedent. ORS 115.215.
We should not attempt to rewrite ORS 30.020(1); if it is to be rewritten to incorporate the majority’s view, it needs major changes and the job should be left where it belongs — with the legislature.
II
Second, there is no need to reach the question decided by the majority. Any defect in the first of the *54amended complaints joining the corporate defendants was cured, and it was timely.
The procedural history of this proceeding is necessary to understand the problem presented. On May 17, 1979, plaintiff filed a wrongful death action against defendant Spray, alleging that the death of her son on May 23, 1977 was caused by the medical malpractice of Dr. Spray in prescribing the drug, propoxyphene, when he knew or should have known of its potential fatal toxicity; in prescribing that drug when plaintiffs son had a history of drug abuse, and in failing to warn plaintiffs son of the potential fatal toxicity of propoxyphene. Spray filed an answer, and the action was scheduled to go to trial on June 23,1980.
On May 3, 1980, which everyone involved assumes to have been within the three-year period authorized by ORS 30.020(1) to commence a wrongful death action, plaintiff filed an amended complaint (first amended complaint) which added the corporate defendants as party defendants, alleging negligence on their part in one or more of five particulars. The gist of those particulars was that the corporate defendants failed to provide the medical profession with adequate information concerning the use of propoxyphene, including all relevant hazards, contraindications, side effects and precautions under which practitioners may prescribe the drug safely. Plaintiff neither requested nor received leave of the court or the consent of the adverse party, Spray, to file the pleading.
On June 11,1980, the corporate defendants moved to dismiss the amended complaint on the grounds of “insufficiency of summons or process” or the service thereof, contending that plaintiff had not complied with ORCP 23A in that she had not obtained leave of court or written consent of the adverse party before filing it. On June 13, 1980, plaintiff obtained an order, to which Spray’s attorney stipulated, authorizing the filing of “an amended complaint” joining the corporate defendants. On June 19, 1980, more than three years after plaintiffs son’s death, plaintiff filed a second amended complaint, which was identical to the first amended complaint, except for an allegation that plaintiff had discovered her claims against the corporate defendants within three years of the filing date.
*55On June 19, 1980, the trial court granted the corporate defendants’ motions to dismiss the first amended complaint. Thereafter, each of the corporate defendants filed motions to dismiss the second amended complaint, each contending that the action against it was not commenced within the time limited by law. Each of those motions was granted on October 8, 1980, followed by a judgment entered for both corporate defendants on October 20,1980.
In this court, plaintiff contends that: (1) the trial court erred in dismissing the first amended complaint; (2) even if that amended complaint was properly dismissed, the second amended complaint, under the provisions of ORCP 23C, related back to the date of the filing of the original complaint, and (3) even if the first two contentions fail, the statute of limitations provided by ORS 30.020(1) had not run as to the corporate defendants because, as alleged in the second amended complaint, plaintiff did not discover those defendants’ negligence until sometime within the three years immediately preceding the filing of the second amended complaint.
I consider the first contention dispositive. Assuming that ORCP 23A2 applies to an amendment to a complaint which does not change the claim against the existing *56defendant, but only asserts claims against additional defendants added by the amendment, plaintiff was required to obtain either leave of the court or the consent of the existing defendant, Spray. She did not obtain either prior to filing and serving her first amended complaint. She did, however, obtain both after the fact, but before the motions to dismiss that amended complaint were heard.
Plaintiff contends that the corporate defendants do not have standing to raise the question of whether the first amended complaint was duly filed; they could not have prevented it over Spray’s consent. I think there is substantial merit to that contention, and the doctor’s subsequent stipulation to the order permitting the filing of an amended complaint may be treated as a ratification of the filing of the first amended complaint. In any event, clearly he is not complaining. However, even if we treat the serving and filing of that amended complaint as amounting to an “insufficiency of summons or process,” as defendants contend, I do not think the insufficiency requires dismissal.
The corporate defendants contend that the first amended complaint was a complete nullity, relying on Alery v. Alery, Jr., et ux., 193 Or 332, 238 P2d 769 (1951), and Schmitt et ux v. Culhane et al, 223 Or 130, 354 P2d 75 (1960). In Alery, the defendants filed, without leave of court, a second amended answer, a copy of which was mailed to the plaintiffs’ attorney, but not served upon the plaintiffs as then required by law. Plaintiffs did not file a reply to that second amended answer and defendants moved for judgment on the pleadings, which the trial court granted.
On appeal, the Supreme Court reversed the judgment for defendants on the ground that the trial court abused its discretion in not permitting plaintiff to file her reply after defendants filed their motion for judgment on the pleadings. In discussing the filing of the second amended answer without leave of court, the court said:
*57“In the case at bar the record not only fails to show the permission of the court to file the second amended answer, but counsel for defendants in the argument on the appeal admitted that such right was never secured from the court.” 193 Or at 341.
That language clearly suggests that if defendants had obtained leave of court subsequent to filing the second amended answer, the defect would have been cured. In any event, the case does not go so far as defendants contend, because the Supreme Court’s ultimate disposition was to permit the plaintiffs to file a reply to the second amended answer, even though that pleading had not been properly filed or served. It was not treated as a nullity.
In Schmitt, at the opening of trial defendants requested leave of court to file a third further and separate answer and defense, to which plaintiffs objected. The court did not grant permission. The Supreme Court pointed out that the amendment was never legally filed, because the trial court had not granted defendants’ motion for leave to do so. Neither of those cases disposes of the question presented here.
A more analogous situation was presented in the later case of State ex rel Kalich v. Bryson, 253 Or 418, 453 P2d 659 (1969), a mandamus proceeding in which the relators were the defendants in the underlying action. In the underlying lawsuit, the summons served on the defendants shortly before the statute of limitations had run was fatally defective. After the statute of limitations had run, the defendants appeared specially and moved to quash the summons on the ground that it was void. Plaintiff then filed a motion to amend the summons to correct the defect. Plaintiffs motion was allowed, and the motion to quash was denied.
Thereafter, the defendants, as relators, filed an original proceeding in mandamus in the Supreme Court to require the trial judge to vacate his order denying the motion to quash and allowing the plaintiffs motion to amend the summons. The Supreme Court conceded that a legally sufficient summons was essential to the acquisition of jurisdiction over the person. However, it considered the question to be whether failure to designate the time within *58which the defendant must appear was so substantial a defect that it rendered the summons inadequate for that purpose. The court pointed out that the purpose of a summons is to give the defendant notice of an action against him, the name of the court in which the complaint is filed, the names of the parties, the relief sought and the defendant’s obligation to answer.
The court went on to say that the failure of the summons to advise defendant of the time within which he must appear resulted in the court’s not having jurisdiction to enter a default judgment against the defendant. The court then stated:
“But, it does not follow that a failure to give such notice to the defendant deprives the court of jurisdiction for all other purposes. If the court’s action does not deprive the defendant of an interest which deserves legal protection, there is no reason for concluding that the court does not have jurisdiction. [Footnote omitted.] We do not think that the failure to give relators notice of the time within which to appear or answer invaded any interest of theirs worthy of protection to such an extent that the court did not have jurisdiction to entertain a motion to amend the summons. [Footnote omitted.]
“For the purpose of preparing their defense, relators had as much information concerning the action brought against them as if the summons were perfect in form. The defect in the notice involved in the present case could harm the relators only if plaintiffs delay in amending the summons deprived them of the opportunity to take whatever action was necessary for the defense of their case.” 253 Or at 422-23.
By that reasoning, the court concluded that the trial court had jurisdiction to cure the defect in the summons after the fact.
The same rationale applies here. The corporate defendants had notice of plaintiffs claims against them by virtue of the first amended complaint the same as if defendant Spray had consented to the filing of that complaint beforehand. They could not have prevented the filing of that complaint if defendant Spray had consented. The Court had jurisdiction of the cause; it was then pending before the court. Accordingly, the court had authority to entertain Spray’s subsequent consent and to enter the *59stipulated order authorizing the filing of an amended complaint adding the two corporate defendants. Here, unlike Alery, the plaintiff did obtain both defendant Spray’s consent and a court order authorizing the filing of an amended complaint. I read Kalich to hold that a technical defect may be cured after the fact and after the statute of limitations has run to prevent plaintiffs claim from being time-barred, so long as the court has jurisdiction to cure it. Here, the court had jurisdiction and the defect was cured after the fact.
Accordingly, I would hold that the first amended complaint should not have been dismissed and would reverse the judgment for the corporate defendants and remand the case to the trial court to reinstate that amended complaint.
. Roberts, J., Warren, J., and Van Hoomissen, J., join in this specially concurring opinion.ORS 30.020(1) provides:
“When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent’s surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent’s domicile would be entitled to inherit the personal property of the decedent, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had he lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within three years after the occurrence of the injury causing the death of the decedent.”
ORCP 23A provides:
“A pleading may be amended by a party once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. Whenever an amended pleading is filed, it shall be served upon all parties who are not in default, but as to all parties who are in default or against whom a default previously has been entered, judgment may be rendered in accordance with the prayer of the original pleading served upon them; and neither the amended pleading nor the process thereon need be served upon such parties in default unless the amended pleading asks for additional relief against the parties in default.
That rule does not appear to contemplate an amended complaint which adds party defendants. In fact, the only part of ORCP 23 which expressly deals with an amendment affecting a party other than the one or ones named originally is Rule 23C, and that rule provides for relation back, under certain circumstances, where the party is “changed.”
If ORCP 23A does not apply here, there does not appear to be any rule which clearly covers this situation. However, ORCP 30 provides that parties may be *56dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action. That rule also provides that misjoinder of parties is not ground for dismissal. The corporate defendants here do not contend they could not be joined. See ORCP 28.