1949, Ivan C. Morgan, Joseph S. Morgan, Ivan H. Morgan, Margaret
M. Rennard, and Marion Lyons as an association or copartnership
were doing business as the Morgan Packing Company; that on the
12th day of August, 1949 the said partners incorporated said
business under the name of the Morgan Packing Company; that two
of the said partners have died and that Lenora Morgan is the duly
appointed administratrix of the Estate of Joseph S. Morgan and
Fern Morgan is the duly appointed administratrix of Ivan C.
Morgan; and prays that he be permitted to make parties defendant
herein the said two administratrix and the remaining surviving
parners instead of Morgan Packing Company, a corporation.
The defendants and each of them have objected to this upon the
ground that the substitution of said partners in place of Morgan
Packing Company, a corporation, is a new and entirely different
cause of action from that suit in the original complaint and
comes after the one year provision for time to commence a cause
of action under Sec. 2 of the Injuries Act of Illinois, Chap. 70
of the Ill. Rev. Statutes. Sections 1 and 2 of Chapter 70, Ill.
Rev. St. 1949, was in derogation of the common law. At common law
no action survived. This continued action is a new suit unknown
to the common law and purely statutory. Hazel v.
Hoopeston-Danville Bus Company, 310 Ill. 38, 141 N.E. 392, 30
Plaintiffs are contending that this is a misnomer and is not a
new action. In Fitzpatrick v. Pitcairn, 371 Ill. 203,
20 N.E.2d 280, the Supreme Court of the State of Illinois, in a suit under
the Wrongful Death Act, the plaintiff sued the Wabash Railway
Company within the year. After the year expired plaintiff
attempted to amend the summons which recited service upon the
railway company by delivering a copy to Charles T. Chapman, its
agent. More than one year after the accident the receivers by
leave of court were added as parties defendant and were served
with process, the receivers having been in the operation of the
railroad company on the date the cause of action arose. The only
issue in that case was whether suit was commenced against the
receivers within the statutory limitation. 371 Ill. at page 210,
20 N.E.2d at page 283, the Court there said: "`The Injuries Act
applies to the commencement of a suit and has no application to
matters of pleading or procedure thereafter.' Adhering to our
former holdings we said the time fixed by the Injuries act for
commencing an action for wrongful death is not a statute of
limitations, but is a condition of the liability itself; that it
is a condition precedent attached to the right to sue at all,
and, being so, the plaintiff must bring himself within the
prescribed requirements necessary to confer the right of action."
Inasmuch as this is a suit upon a statute and in derogation of
the common law the Court there held that the provision for
amending and substituting parties under the Practice Act could
not apply. To the same effect and holding that substitution of
parties is a new cause of action, Third Nat'l Bank & Trust Co. of
Springfield, Mass. v. White, D.C., 58 F.2d 411, and Sweeney v.
Greewood Index-Journal Co., D.C., 37 F. Supp. 484; Metropolitan
Trust Co. v. Bowman Dairy Co., 369 Ill. 222, 15 N.E.2d 838;
Wilson v. Tromly, 404 Ill. 307, 89 N.E.2d 22.
The fact that the defendants are nonresidents of the State of
Illinois does not toll the statute while they are nonresidents.
They could obtain service by substituted personal service under
said Sec. 23, Chap. 95 1/2. Nelson v. Richardson, 295 Ill. App. 504,
15 N.E.2d 17.
Of course, plaintiff could be permitted to amend his complaint
and make the new party defendant, but the Court should not permit
an amendment to pleading to cure defects therein where the
amendment would be futile. U.S. v. Crary, D.C., 1 F. Supp. 406;
Hartmann v. Time, Inc., D.C., 64 F. Supp. 671, at page 681.
Therefore, leave to substitute new parties defendant having
been requested on April 7th more than one year after the death in
question, it is denied. Plaintiffs may proceed as to the
defendant James Donald Green.
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