Elliott v. Hart

T. R. Strong, Justice.

Prior to 1825 it was the practice to set aside process and subsequent proceedings for misnomer of defendants, if they applied before appearance and before the time for pleading had expired (see 4 Cow. 148, and cases there cited). But in that year a general rule was adopted, by which it was declared the court would not entertain such motions in future, but would leave parties to the remedy of a plea in abatement (see 4 Cow. R. 157; Gra. Pr. 2d ed. 200). No similar provision is contained in the present rules of the court, and it is doubtful whether, under the Code, the former remedy in such case of a plea in abatement exists.* There should be some remedy, and I am inclined to think the practice which existed before the rule of 1825, of moving the court to set aside the proceedings, is now in force under rule 92 of the rules of 1847.

In respect to the copy summons and complaint served on the defendant Spear, there is a variance between the summons and complaint, in stating the names "of the defendants, which might perhaps warrant the motion of that defendant, if the rule of 1825 continued in force (see 4 Cow. R. 549, and cases cited; Gra.Pr. 2d ed. 201, and cases referred to).

The motion's are grarited with $5 costs to each defendant unless the plaintiff, within twenty days after service of a copy of the order, amend by inserting the true names of the defendants, serve a copy of the amended summons and complaint upon the attorney of each defendant, and pay said costs. Liberty to amend upon such terms is hereby given.

* See Gardiner agt. Clark, 6 How. Pr. R. 449.