Argument for Plaintiff in Error.

Error was prosecuted to the circuit court, which reversed the judgment on the grounds: (1) That the common pleas court erred in permitting the substitution of The N. O. T. Co. for The A. B. C. Co. as defendant; and (2) "in ruling adversely to defendant on the agreed statement of facts with respect to the plea of the statute of limitations."

Messrs. Ong, Thayer & Mansfield, for plaintiff in error.

As the court of common pleas ordered the substitution of The N. O. T. Co. for The A. B. C. Co., reserving only the question of jurisdiction so to do, and no bill of exceptions was taken thereon, the only question which arises on this point concerns the power of the court to make such substitution. Caldwell Furnace Foundry Co. v. The Peck-Williamson Heat. & Vent. Co., 6 C. C., N. S., 629, 76 Ohio St., 585; Lee v. Benedict, 82 Ohio St., 302.

The court had power to make such substitution. L. S. & M. S. Ry. Co. v. Elyria, 69 Ohio St., 414; 1 Bates' Pleading (2 ed.), 140-144.

By the consolidation of the two companies, the old ones were extinguished. Compton v. Railway Co., 45 Ohio St., 615; Lee v. Sturges, 46 Ohio St., 169; Ashley v. Ryan, 49 Ohio St., 529; Shields v. Ohio, 95 U. S., 319.

We insist that The N. O. T. Co. was carrying on the defense of this case in the name of a fictitious party, which would not only of necessity make The N. O. T. Co. the real party to the case, but would even as to it make the judgment therein res adjudicata. Roby v. Eggers, 130 Ind., 416;

Argument for Defendant in Error.

Claflin v. Fletcher, 7 Fed. Rep., 851; 2 Black on Judgments (2 ed.), Sec. 539.

The court had power to permit amendments to pleadings by striking out or adding the name of any party "in furtherance of justice." Section 5114, Revised Statutes.

Such amendments are proper, and take effect as of the beginning of the original case. Lilly v. Tobbein, 103 Mo., 477; School Town v. Grant, 104 Ind., 168; Railroad Co. v. Bills, 118 Ind., 221; Snider's Exrs. v. Young, 72 Ohio St., 494.

Messrs. Ford, Snyder & Tilden, for defendant in error.

The plaintiff in error says that after the consolidation of The A. B. C. Co. with another company on July 12, 1899, it was no longer in existence; that it could not sue and be sued; that it had no actual existence and was a mere fiction.

The old companies are declared to be in existence so far as is necessary to preserve the rights of their creditors, and they may sue and be sued. Compton v. Railway Co., 45 Ohio St., 592; Harris v. C. H. & D. Ry. Co., 16 O. D., N. P., 653.

The legislature having provided certain specific cases when the statute begins to run, from the discovery of the wrong, in all other cases the statute begins to run from the date of the wrong, and not from the date of its discovery, even though it may have been fraudulently concealed. Fee's Admr. v. Fee, 10 Ohio, 470; Howk v. Minnick, 19 Ohio St., 462; Williams v. Pomeroy Coal Co., 37 Ohio St., 583; State, ex rel., v. Standard Oil Co., 49 Ohio St., 137; A. T. & S. F. Ry. Co. v. Atchison

Opinion of the Court.

Grain Co., 68 Kans., 585; Wood on Limitations, (3 ed.), Sec. 276.

WILKIN, J. Section 3384, Revised Statutes (the law at the time of the amalgamation), provides as follows:

Upon the election of the first board of directors of the company created by the agreement of consolidation, the rights, privileges and franchises of such company and all the property, and debts due on account of subscriptions of stock or other things in action, shall be deemed to be transferred to and vested in such new company, all property and other interests shall be effectually the property of the new company as they were of the parties to the agreement but all rights of creditors, and all liens upon property of either shall be preserved unimpaired, and the respective companies may be deemed to be in existence to preserve the same; and all debts, liabilities and duties of either shall thenceforth attach to the new, and be enforced against it as if such debts, liabilities and duties had been contracted by it.

* * *

The consolidation or absorption of The A. B. C. Co. into the defendant company, though in fact a dissolution of the constituent company, did not destroy its existence in contemplation of law for one purpose. It is deemed still to have a being to answer the suit of its creditors; the legal entity survives the merger, with its property, for this purpose.

Such seems to be the rationale of the case of Compton v. Railway Co., 45 Ohio St., 592.

But the opinion in that case refers to this legal conception as a fiction of the chancellor to protect creditors.

Opinion of the Court.

This seems necessarily to involve the idea that the merger of the two companies is nevertheless an actual blending of the absorbed and the absorbing corporations into one composite legal person. The notion of separate entity is only a figment of the mind, not appropriate to the case at bar, for the tort-obligor here is The N. O. T. Co., not The A. B. C. Co.

The composite or consolidated company, by express declaration of the statute, is liable for the obligations of the component companies. So that if a judgment had been taken in the case against The A. B. C. Co., that judgment would have immediately become the obligation of The N. O. T. Co. Therefore The N. O. T. Co. had an interest in the case, to defeat a recovery.

The determinative question is: Did the latter company appear in the case?

Stipulation No. 11 in the agreed statement of facts signed and filed in the suit by the plaintiff and the now defendant. The N. O. T. Co., gives the answer to this question. By that stipulation The N. O. T. Co. admits that the answer which its attorneys filed in the case was only ostensibly the answer of The A. B. C. Co.; that The N. O. T. Co. requested its attorneys to prepare and file the answer, and paid them for that service. The inference is that the service was rendered for The N. O. T. Co. at whose instance it was performed, and that the service was for the benefit of the latter company, which paid for the service, to defend it from liability for its own wrong.

The conclusion, therefore, must be that the attorneys for The N. O. T. Co. who appeared only

Opinion of the Court.

ostensibly for The A. B. C. Co., which was sued by mistake, appeared in fact as attorneys for and in behalf of The N. O. T. Co.

Our statute of amendments is very liberal. In furtherance of justice the court may amend any pleading, process or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect. Section 11363, General Code.

The real party who did the wrong complained of was in court. It operated the railway on which it invited the plaintiff to become a passenger, under the name A. B. C. published on the cars. The plaintiff naturally mistook The A. B. C. Company for the owner and operator of the railway, and sued it for his damage instead of The N. O. T. Co., the real party responsible for his injury.

The court was right in amending the proceeding by substituting the name of the real defendant for whom its own attorneys appeared and made the defense for it in fact, though ostensibly for the company which was sued by mistake and whose legal personality, franchises, assets and obligations it had absorbed.

Having voluntarily come into court, though in the guise of The A. B. C. Co., and filed an answer in its own defense, though ostensibly for the nominal defendant sued by mistake, The N. O. T. Co. stopped the statute of limitations from running in its favor during the long period it graciously permitted the case to be continued in the false hope that the bar of the statute would ripen.

The clever argument made by counsel for defendant in error is that The N. O. T. Co. was free