10 Mo. 131 | Mo. | 1846
delivered the opinion of the Court.
This was an action on the case for a tort, brought by the appellees, against the appellants, owners of the steamboat Little Red, to recover damages caused by the negligence of the officers of the steamboat, by which she struck against a flat-boat of the appellees, loaded with salt, and sunk her. The defendants pleaded not guilty. At the trial term, which was a considerable time after the commencement of the action, the plaintiffs applied for leave to amend their declaration on the affidavit of an agent who caused the suit to be brought, stating that he furnished to the attorney of the plaintiffs, the names of the part owners, composing the firm of Hewitt, Ruffner & Co., for the purpose of bringing this suit; that in so doing he omitted the names of four of the partners of said firm; that the partnership was formed on the principles of a joint stock company, each person being interested-in proportion to the stock he held ; and that sales of interests in the stock of said firm were made by those who were original partners or stockholders to other persons, with which sales the affiant was unacquainted ; so that at the time of the accruing of the cause of action in this suit, the persons omitted had become interested as partners. The Court thereupon granted leave to amend the declaration by inserting the names of plaintiffs omitted, and by correcting a mistake in the name of one who was already named. To this an exception was taken.
On a trial a verdict was rendered for the plaintiffs for .$3465 68.
A motion for a new trial was made on the ground that Chouteau, one of the defendants, was mistaken in matters of fact, and thus prevented from making his defence. Affidavits in support of this motion were filed.
It was argued for the appellees that the allowance of the amendment can not be assigned for error, for the reason that a bill of exceptions can not be taken to such an act, it not occurring during the progress of the trial, the words of the act allowing bills of exceptions. It may be questioned whether a bill of exceptions is in all cases necessary to bring up a record in case of the allowance of amendments, 3 Mass. 208. Be that as it may, the statute relative to bills of exceptions has received a practical construction ever since its introduction into our code, from which it would be unsafe now to depart, and the overturning of which would deprive this Court of the power of reviewing many matters over which its jurisdiction has long extended. We are not prepared to say, that that construction is not warranted by the words of the act. Our
On the propriety of the amendment itself this Court must say that it ought not to have been permitted. By the common law, independently of any statutory provision on the subject, amendments are in all cases in the discretion of the Court for the furtherance of justice. At common law, until a final judgment is entered, and the term past, amendments could be made, but after the term at which a judgment is entered, amendments can only be made by the statutes of jeo fails, 3 Black. 407. Graham’s Practice, 524. When the amendment was made in this case, it was in such a state, that if the amendment was warranted at all, it was warranted by the common law, for our statute of amendments, so far as amendments are concerned, whilst the proceedings are in fieri, is merely declaratory of the common law. Now if by the common law amendments of the character made in this case were allowed, is it not obvious that much of the learning in the books on the subject of parties would have been useless, and instead of the labored essays on this branch of the law we meet with, the subject might have been disposed of in a much more summary way. The consequence of not joining a plaintiff as a party, is shown in all the elementary works on pleadings but we have not been enabled to find where it is said that the omission can be obviated by an amendment. If it were allowable, it would certainly have been somewhere suggested. There is nothing in the affidavit which was the foundation of the motion to amend, which might not be alleged by every one making such applications, and if it were allowed, rules sanctioned by the profession from time immemorial would he subverted. Mistakes in the names of parties have been amended; but to allow new plaintiffs or defendants to be inserted in a declaration
Amendments in matters in which they are allowable, are so much in the discretion of the Circuit Courts, that this Court has of late manifested great reluctance to interfere with the action of these Courts on the subject. A liberal discretion should be exercised in the allowance of amendments in furtherance of justice. In matters wherein' amendments are allowable, it would require a strong case to provoke the intérference-of this Court; but when Courts depart so far from principle as to permit amendments, in matters wherein amendments are not allowable, a concern for the preservation of rules which have always been deemed necessary to uphold the science of pleading which is so necessary to a correct administration of the law, must induce such action on the part of this Court as will preserve ancient and established principles.
s This being an action ex delicto, and as the non joinder of the plaintiffs who were omitted could only be taken advantage of by plea in abatement, it being clear that one of several partners of a chattel may sue and recover, unless the action is defeated by plea in abatement, Addison vs. Overend, 6 Term 766 — the judgment will be reversed, and the cause remanded, Judge Napton concurring.
