TOMMY J. CARTWRIGHT, JAMES F. MURPHY AND STEPHEN A. LITTLE, CO-ADMINISTRATORS OF THE ESTATE OF IRA L. LAUDERDALE, DECEASED, APPELLEES,
v.
ATLAS CHEMICAL INDUSTRIES, INC., A FOREIGN CORPORATION; AMERICAN CYANAMID COMPANY, A FOREIGN CORPORATION; AND DEUPREE DISTRIBUTING CO., INC., AN OKLAHOMA CORPORATION, APPELLANTS.

Appeal from District Court, Creek County; Charles S. Woodson, Judge.

�0 After mandate had issued on affirmance of a wrongful-death award, plaintiffs sought trial court's leave to amend their petition by substituting the correct corporate name of the intended party-defendant for the one that was erroneously set forth in the text. The intended but misdescribed party-defendant appeals from trial court's order allowing its correct corporate designation to be substituted for that of another entity originally named in the body of the petition.

AFFIRMED.

Rhodes, Hieronymus, Holloway & Wilson by Russell B. Holloway and A. Scott Johnson, Oklahoma City, for appellants.

Jack B. Sellers, Law Assoc. Inc. by Jack B. Sellers, Sapulpa, for appellees.

OPALA, Justice:

[623 P.2d 608]

�1 The single issue raised by this appeal is whether the body of a petition may be amended in the trial court - after issuance of appellate mandate affirming the judgment - to substitute for the name of a misdescribed party-defendant the correct corporate designation of the intended but misidentified adversary. We hold that in the rather unusual posture narrowly delimited by the facts of this case the substitution effected by the trial court is tainted with neither procedural nor constitutional infirmity.

�2 This wrongful death action was occasioned by a premature explosion of dynamite fuse caps.

�3 The misdescription sought to be corrected admittedly results not from a party's misnomer either in the caption of the petition or in the process issued. In neither of these instruments does the caption explicitly or implicitly misidentify the manufacturer. This is so because it designates that entity as "Atlas Chemical Industries, Inc., a foreign corporation." The misidentification, which was the subject of the post-judgment controversy now before us, results clearly from a single reference in the body of the petition in which the not-incorrectly-captioned manufacturer is misdesignated as a Rhode Island rather than a Delaware corporation.

�4 The post-judgment dispute here under review was set in motion by the plaintiffs' quest to correct, after mandate and affirmance, the misdescription in the body of the petition - called by them "a party's misnomer" - which misdesignates the manufacturing entity as a Rhode Island corporation. From an order which substituted Atlas for the misidentified corporate entity named in the petition, Atlas

I.

AMENDMENT OF JUDGMENT ROLL BY SUBSTITUTION OF PARTIES

DISTINGUISHED FROM MODIFICATION OF JUDGMENT

�5 Atlas seeks reversal contending, inter alia, the trial court is "without jurisdiction" to effect an alteration of the record proper in a suit once mandate has been issued. Any attempted change at that stage, we are told, would be tantamount to tampering with the "law of the case". After mandate, we are urged, the trial court's authority extends no further than to purely ministerial functions. At that point in litigation, Atlas urges, the trial court may only correct the judgment by a nunc pro tunc revision to make its record "speak the truth" and cause it to reflect what was actually adjudged but was incorrectly recorded. Atlas claims that in this case the trial court undertook, by means of a nunc pro tunc amendment, both to change substantially the legal position of a party-defendant that was not before it and to adjudicate impermissibly that absent party's property rights. Moreover, Atlas asserts that the proper procedure for a post-judgment correction is not 12 O.S. 1971 � 317

�6 Plaintiffs counter that they sought only the correction of a misnomer - not the modification of a judgment under � 1031. They assert that Atlas (Del.) - the correct entity - had received timely notice of the suit, actually appeared in the case and availed itself of unimpeded opportunity to present its defense during every stage of the litigation process.

�7 We agree that the order allowing the corporate designation of the defendant to be changed did not constitute here a "modification" of the judgment in the � 1031 sense of the term. The plaintiffs were seeking not to alter or change the judgment itself but rather to amend the petition by substituting for the misdesignated and misidentified defendant the correct corporate entity of the manufacturer who was [623 P.2d 610] admittedly the intended party-defendant with notice of suit and full opportunity to defend.

�8 The word "modification", as used in � 1031, refers to a process by which new terms are sought to be added to a judgment or the old ones changed, even though the general purpose and legal effect of the decision may remain intact.

�9 In contrast to a � 1031 modification, an amendment under � 317 contemplates but a change in the court record that would make it either speak the truth or reflect the position that actually unfolded itself during the litigation process. The outer limit of � 317 proceeding is that the contemplated amendment may not change a claim or defense.

�10 As we analyze the posture of this case, the object of the proceeding here was not to affect (modify) the decision rendered but rather to make its record conform to the proof establishing who was the intended and actual adversary in the forensic combat from which the judgment resulted. The relief sought was hence one clearly within � 317.

II.

EFFECT OF A � 317 SUBSTITUTION OF PARTIES AFTER THE LIMITATION

PERIOD

�11 The plaintiffs have mischaracterized this proceeding as a � 317 amendment to correct a misnomer. The typical "misnomer" problem commonly concerns itself with a wrong middle initial or some other omitted or misstated word in the designation or appellation of a party.

�12 The rule applied to curing a defendant's misnomer does not extend to situations where, as here, the misdesignation results in the naming, as a party-litigant, an entity distinct from that which was the intended defendant in the suit. By misdescribing in the petition's body the not-incorrectly-captioned defendant, plaintiffs brought into their case a totally different entity. In this post-judgment and post-mandate proceeding they now seek to correct the misdesignation by substituting their intended target for the one that was misdescribed.

�13 As a general rule, when an amendment by which a new defendant is substituted for the original one is made after the limitation had run, the new defendant may plead the bar of the statute.

III.

EXCEPTION TO RULE AGAINST SUBSTITUTION OF PARTIES AFTER

LIMITATION PERIOD

�14 Judgments bind only parties and privies - not strangers or persons not parties to the action.

�15 Atlas, although misdesignated in the body of the petition, was in fact and in law the actual combatant in its role as the manufacturer. The trial court's findings - made at the conclusion of the ancillary post-judgment contest here under review - amply sustain this conclusion and stand largely unchallenged. These findings are: (a) both corporate entities [Atlas-RI and Atlas (Del.)] are interlocking and have the same officers, directors and service agent; (b) the correct entity did receive actual notice of the occurrence of the accident and pendency of the suit; (c) the correct entity was present at the trial by its house counsel; (d) the correct entity had full and complete opportunity to defend and did so and (e) the misdesignated entity cannot be deemed prejudiced by the plaintiffs' invocation of � 317 proceedings for its substitution as party-defendant on the face of the judgment roll.

�16 Not until the case was well into the trial stage did the plaintiffs become aware of their misidentification of Atlas. When the action was first called for trial, the named defendant stipulated that it was the manufacturer of the dynamite caps. In his opening statement, counsel for the defendant again made the same admission. It was after the trial's commencement that counsel first sought, unsuccessfully, to withdraw the stipulation. Later, counsel also failed in his efforts to have the case removed to a federal court on the basis of diversity of citizenship. He asserted in the removal proceeding that the defendant-manufacturer was a Delaware corporation. Thus, for all practical purposes, counsel stood as a representative of Atlas (Del.), at least from the moment the misdesignation came to be revealed.

�17 Lastly, Atlas contends that the plaintiffs were guilty of laches in not seeking earlier substitution. It asserts that when the plaintiffs first learned the manufacturer was a different entity, they should have immediately sought the substitution of Atlas (Del.). Since this was not done, Atlas (Del.) contends, the plaintiffs are now estopped from securing the benefit of the post-judgment substitution they seek.

�18 We are not in accord with this view. The named defendant never revealed by any pleading on file that it was the wrong defendant entity. There was hence no indication on the face of the record that the wrong manufacturer had been sued. Since Atlas (Del.) revealed itself by the transcript to have been a combatant during the trial of the case, there was no manifest necessity for the plaintiffs to seek a substitution of defendants before judgment. Such a mid-trial substitution would have needlessly delayed the trial proceedings. The proper parties were, for all purposes, present and prepared to meet the issues.

�19 Under the circumstances narrowly delimited by the procedural posture of this case, the substitution of Atlas (Del.) for the nominal defendant is not contrary to due process nor violative of � 317.

�20 Affirmed.

�21 All Justices concur.