Alexander v. Rose

Adams, J., delivered the opinion of the Court. On September 11, 1941, appellant (plaintiff below) as statutory liquidator of the Keystone Indemnity Exchange, an unincorporated reciprocal insurance exchange of Pennsylvania, brought suit at law against R. Contee Rose, trustee of George Arnold Frick, incompetent. On May 18, 1933, the Keystone Indemnity Exchange was declared insolvent and dissolved pursuant to the laws of Pennsylvania, by the Court of Common Pleas of Dauphin County, Pennsylvania. On September 12, 1938, it was ordered by said court that the subscribers of said Exchange holding policies issued from April 9, 1929, to May 18, 1933, should pay an amount equal to one annual deposit premium on each of said policies, for the purpose of paying losses of said Exchange.

George Arnold Frick was alleged to have held four policies issued by the Exchange during the period in question, issued respectively on January 17, 1930, January 17, 1931, January 17, 1932, and January 17, 1933, the annual deposit premiums thereon aggregating §422.85, and it was alleged “that the estate of the Defendant’s incompetent is liable to the Plaintiff” in the sum of §422.85 and interest thereon from August 15, 1940. On October 17, 1941, defendant, R. Contee Rose, trustee, filed pleas to the declaration against him. On November 24, 1941, defendant’s incompetent, George Arnold Frick, died, and on December 22, 1941, plaintiff petitioned the court, praying the court to grant a new writ of summons against R. Contee Rose, administrator of the estate of George Arnold Frick, deceased, and that said administrator be joined as a defendant in the suit. ⁴⁵⁰ The relief prayer was granted by the court and summons issued to be served upon R. Contee Rose, administrator of the estate of George Arnold Frick, deceased. On December 29, 1941, an amended declaration was filed naming as defendants “R. Contee Rose, Trustee of George Arnold Frick, Incompetent, and R. Contee Rose, Administrator of the estate of George Arnold Frick, deceased.” On February 6,1942, “R. Contee Rose, Trustee,” moved for judgment of “non pros” for want of replication to the pleas theretofore filed by him, and on February 26, 1942, the court ordered judgment of “non pros” entered.

On February 6, 1942, the defendant,’ R. Contee Rose, administrator, filed pleas to the amended declaration, among them being a plea of limitations to the effect that the alleged cause of action “did not accrue within three years before this suit.” To this plea plaintiff for replication filed a common traverse and defendant administrator joined issue thereon. Subsequently, plaintiff petitioned the court for leave to withdraw his replication to said plea and file a demurrer thereto, in order that it might be determined before trial upon the merits, whether the date of institution of this action against Rose, administrator, was the date suit was originally filed against the trustee (September 11, 1941) or the date when the administrator was made a party thereto (December 22, 1941). The case of Wachter, Hoskins & Russell v. Taggart, 179 Md. 608 , 21 A. 2d 141 , settled that a three-year period of limitation running from September 12, 1938, was applicable in these suits against policy holders and if the date of institution of the action as against the sole remaining defendant “Rose, Administrator” was December 22, 1941, the plea of limitations was a complete defense. Maryland Code, Art. 75, Sec. 41, provides that in no case of amendment can entire new parties either plaintiffs or defendants be made and Art. 75, Sec. 43, provides that “If there be a misjoinder or non-joinder ⁴⁵¹ of defendants, the court may allow a defendant to be stricken out or added, as the case may require; but if a new defendant be added, he shall be summoned and have the same time to plead as if a new action were brought against him.” (Italics added.) As this case was originally brought against “Rose, Trustee” and “Rose, Administrator” was joined as a new defendant on December 22, 1941, and as after February 26, 1942, the action was continued against “Rose, Administrator” as sole defendant, it follows that the date of institution of this suit against “Rose, Administrator” was December 22, 1941, unless the provisions of Section 29 of Article 75 of the Code prevented the suit as originally filed, September 11, 1941, against “Rose, Trustee,” from abating upon the death of George Arnold Frick.

Where a sole party defendant is not a proper party defendant, the addition of a proper defendant is in effect the supplying of a sole defendant. Atkinson v. Philadelphia B. & W. Railroad Co., 137 Md. 632 , 113 A. 110 . Code, Art. 75, Sec. 29, provides that “No action of ejectment, w’aste, partition, dower, replevin, or any personal action, including appeals from judgments rendered by justices of the peace, in any court of law in this State shall abate by the death of either or any of the parties to such action; but upon the death of any defendant, the action shall be continued and the heir, administrator or executor of the defendant, or other person interested on the part of the defendant, may appear to such action It is clear that this statute can be invoked only in the event of the death of one of the parties to an action. Appellant relies upon the proposition that “When a lunatic dies in fact, his committee dies in law.” Cain v. Warford, 3 Md. 454 at 462 ; In re Colvin’s Estate, 3 Md. Ch. 278 at 288 .

The inference the court is asked to draw is that when George Arnold Frick, incompetent, died in fact, R. Contee Rose, trustee of the incompetent’s estate, died