[File No. 6180.]

#### MAX DEREK, Respondent, v. B. W. ELDER, Sole Trader Doing Business as the Elder Horse Sales Company, and THE ELDER HORSE SALES COMPANY, Appearing Specially as Appellants.

(249 N. W. 724.)

Opinion filed July 17, 1933.

*8. E. Ellsworth,*for appellant.

*Bucle & Buchj*for respondent.

Christianson, J.

Tbe sole question involved in tbis case relates to tbe amendment of a summons in a justice’s court. Tbe facts out of wbicb tbe question arises are substantially as follows: Tbe plaintiff, Derek, broug’bt suit in a justice’s court against “B. W. Elder, sole *636trader doing business as tbe Elder Horse Sales Company/’ to recover the possession of certain personal property. The summons was served upon the defendant Elder personally. On the return day he appeared and filed an answer which placed in issue all the allegations of the complaint. At the close of all the evidence, plaintiff’s counsel made the following motion:

> “At the close of the taking of the testimony in the above entitled action, it appeared from the testimony given by B. W. Elder, named as Defendant, and by W. H. Elder, son of the Defendant, both appearing in Court and being called as witnesses, that the name of the Defendant is not properly designated in the Summons and in the Complaint, and that the Elder Horse Sales Company, a Corporation, has in its possession the property described in Plaintiff’s Complaint, and that B. W. Elder named as Sole Trader in the Summons and in the Complaint is the President and General Manager of the Elder Horse Sales Company, and it further appearing that the Summons and Complaint herein and other papers involved in this action were served upon B. W. Elder, President of the Elder Horse Sales Company, and that the Elder Horse Sales Company is the proper, legal name that should have been used in properly designating the Defendant. The Plaintiff now moves that the Court, pursuant to the provisions of § 7482, amend the title of this action in both the Summons and Complaint so as to correctly designate and name the Defendant herein as the Elder Horse Sales Company, a Corporation, and that the Plaintiff herein be allowed to file an Amended Complaint properly designating the Defendant as the Elder Ilorse Sales Company, a corporation.”

Counsel for Elder thereupon moved that the case he dismissed as against the defendant B. W. Elder for the reason that the evidence conclusively established that there was no liability against the defendant and that the cause of action, if any, was against Elder Horse Sales Company, a corporation; that this corporation was not a party to the action and had not been served with summons or other process and that the court was wholly without jurisdiction over such Elder Horse Sales Company. This motion was made by counsel for the defendant Elder, and there was no appearance whatsoever by anyone in behalf of the Elder Horse Sales Company. The trial court granted plaintiff’s motion to amend and directed that the name of the defendant be changed *637to tbe Elder Horse Sales Company, a corporation, and judgment was entered against it alone and no judgment was entered against tbe defendant Elder, individually. Tbe defendant Elder Horse Sales Company appealed to tbe district court from tbe judgment entered against it, on questions of law alone. In tbe notice of appeal it specified that it took tbe appeal, appearing specially for tbe purpose of questioning tbe jurisdiction of the justice of tbe peace to render judgment against bim and for no other purpose. Tbe ruling of tbe justice of tbe peace was assailed by appropriate specifications of error. Tbe trial court beld that tbe justice’s court bad authority to make tbe amendment and that the judgment appealed from was valid. Tbe trial court based its decision upon § 7482, Comp. Laws 1913, which reads as follows::

> “Tbe court may, before or after judgment in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out tbe name of any party; or by correcting- a mistake in tbe name of a party, or a mistake in any other respect; or by inserting other allegations material to tbe pase; or, when tbe amendment does not change substantially tbe claim or defense, by conforming tbe pleading or proceeding to tbe facts proved.”

Tbe plaintiff contends that tbe ruling of the justice of the peace was correct under tbe decisions of this court in Gans v. Beasley, 4 N. D. 140, 59 N. W. 714, and Goldstein v. Peter Fox Sons Co. 22 N. D. 636, 135 N. W. 180, 40 L.R.A.(N.S.) 566. In our opinion these cases do not sustain tbe ruling of tbe justice of tbe peace challenged on this appeal. On tbe contrary, tbe decisions in those cases recognized that a court is without authority to render judgment.in tbe circumstances involved here. In Gans v. Beasley an action was instituted in a district court on a promissory note signed by a firm name, to-wit, W. W. Beasley & Sons. Later an application was made for leave to amend by showing tbe members of tbe co-partnership. In that action there was no substitution of parties; tbe action proceeded against tbe defendants named in tbe original summons. Tbe amendment was made merely to clarify and make certain tbe names of tbe defendants who bad already been sued and served with process. In tbe opinion in that case, after pointing out tbe conditions under which an amendment might be made in tbe name of a party to tbe action and after referring to certain decisions in New York and Michigan, tbe court said :

> *638“We deem further citations unnecessary, as the cases already referred to amply sustain the right to amend, as to the names of parties, in all cases where the amendment does not operate to prejudice the parties, and does operate in furtherance of justice. But *the right to amend must he qualified so as to forbid an amendment which effects an actual change of parlies.*This limitation is clearly established in the cases cited from Michigan and New York.” Gans v. Beasley, 4 N. D. 153, 59 N. W. 714.

Goldstein v. Peter Fox Sons Co. supra, also, involved the amendment of a summons in an action in a district court. In that case the actual name of the defendant was correctly stated, but it was erroneously stated to be a corporation when, in fact, it was a partnership. Service had been made upon one of the pai’tners. The court held that an amendment of the summons and complaint showing that the defendant was a body corporate instead of a partnership and sued in its corporate capacity did not operate to substitute a new party defendant. In that case the court clearly recognized the limitation pointed out in Gans v. Beasley, namely, that there is no authority on the part of the court under the guise of amendment of the name to substitute a new party defendant for the one actually named and served, and to render judgment against such substituted defendant notwithstanding the fact that no process had been served upon him. In the opinion in that case the court said:

> “Defendant will contend that such an amendment is' in reality bringing in new parties to the suit, and, therefore, if permissible, service of summons upon such new parties is necessary, citing thereunder White v. Johnson, 27 Or. 282, 40 Pac. 511, 50 Am. St. Rep. 726, and notes thereto, and similar holdings. If the amendment here permitted amounted to the bringing in of new parties, counsel’s contention would be supported by the weight of authority, but it does not substitute a new for the old party. It merely makes definite the character of the real party sued, the necessity for the knowledge concerning which, besides being proper for the sake of certainty, is that the court may order the appropriate judgment in form and comply with the statute in such respect.” Goldstein v. Peter Fox Sons Co. 22 N. D. 643, 644, 135 N. W. 180, 40 L.R.A.(N.S.) 566.

It will be noted that this court, both in Gans v. Beasley and in Gold-*639stein v. Peter Fox Sons Co. was dealing with a mistake in, and tbe correction of, tbe name of a party defendant. In one case (Gans v. Beasley) tbe firm name was correctly stated and tbe amendment was made to amplify tbe firm name by showing tbe names of tbe persons who composed tbe firm. In tbe second case (Goldstein v. Peter Fox Sons Co.) a mistake bad been made in that tbe Peter Pox Sons Co. bad been designated as a corporation instead of as a partnership. In both cases tbe court clearly recognized that an amendment in tbe name of a party defendant which in reality operated to bring in a party against whom process bad not been issued might not be made under tbe guise of correcting a mistake in tbe name. Obviously it is one thing to permit an additional or new party to be added as a defendant in an action, with tbe express or implied requirement that such party thereafter shall be served with process as other defendants, and quite another to add the name of such party on tbe theory that be is already a party to tbe action and has been duly served with process but that some mistake has been made in bis name and that bis name ought to be corrected so that judgment may be entered against him as tbe person against whom process was issued and against whom the suit was actually instituted. Nor does the statute (Comp. Laws 1913, § 1482), purport to authorize any. such procedure. It is true it permits amendments to be made “by adding or striking out tbe name of any party,” but obviously there was no intention to permit judgment to be rendered against a person merely by adding bis name as a party defendant. Tbe statute, of course, contemplates that in such case tbe party whose name is added shall have process served upon him and be afforded tbe same opportunity to appear and answer as though be bad been named in tbe first instance. It is a fundamental rule of jurisprudence in this country that judgment may not be entered against any person, whether natural or artificial, except pursuant to notice and after opportunity to be beard. In this case tbe amendment brought in a person against whom process had never been issued and who had not waived process. Tbe summons was issued against B. W. Elder individually. By way of description tbe summons designated him as “Sole trader doing business as tbe Elder Horse Company.” Tbe summons that was issued and tbe return of service thereof indicate beyond doubt that tbe suit that was brought, aiid that- was tried was one against Elder as an individual. The fact *640that tbe evidence introduced disclosed that there was no cause of action against Elder, but that whatever cause of action existed was one against .a corporation of which he was president, and of whose name his name formed a part, furnished no basis for permitting judgment to be rendered against such corporation without the issuance or service of process. This is not a question of misnomer; it is a case of naming a new party defendant. It is not a case of correcting or amplifying a name, as where the partnership name is given but the names of the partners are not shown; or where the correct name is given but the company is designated as a corporation when in fact it is a partnership. Here there was a failure to name the true defehdant. The true defendant was not joined, no process was issued against or served upon him.' 'The amendment in this case constituted a substitution of a different party. Voigt Brewing Co. v. Pacifico, 139 Mich. 284, 102 N. W. 739.

We are agreed that the justice of the peace was without authority 'to render judgment against the Elder Horse Sales Company. The judgment appealed from is reversed and the cause is remanded with directions that the justice of the peace be ordered to set aside the judgment and dismiss the action.

Nuessle, Ch. J., and Burr, Birdzell and Burke, JJ., concur.