88 N.Y. 285 | NY | 1882
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *287 The principal question on the merits presented on this appeal is, whether the sureties in an undertaking given to discharge an attachment in an action originally commenced against two defendants, as copartners, to recover on a firm note, are liable to pay a judgment subsequently recovered on the note against the original defendants and another person, a partner in the firm, who was brought in after plea in abatement interposed by the original defendants, by stipulation between the attorneys for the original parties, for the amendment of the summons and complaint, and his subsequent voluntary appearance in the action, the summons being amended by inserting the name of the third defendant, but without the order of the court or the consent of the sureties in the undertaking.
The undertaking was executed in conformity to the statute. (Code, § 241.) It was entitled in the action between the original parties and recited the issuing of an attachment, the appearance of the defendants, and that they were about to apply to have the attachment discharged, and following the recital was the undertaking of the sureties in the sum of $15,000 "on demand to pay the above-named plaintiffs the amount of the judgment which may be recovered against the above-named *290 defendants in this action, not exceeding the above-mentioned sum." The defendants mainly rely upon two grounds in answer to the action: First, that the judgment was not recovered in the action in which the undertaking was given, but in a new action against three defendants, and that the judgment recovered is not, for that reason, within the terms of the undertaking; and,second, that the undertaking only extends to a judgment recovered against the two defendants originally named when the undertaking was given, and does not embrace a liability for a joint judgment against those persons and another.
We are of the opinion that neither of these objections is well founded. The amendment of the summons and complaint, by consent of the original parties, and without the order of the court, followed by the subsequent voluntary appearance of the party not originally brought in, was not the commencement of a new action, but was the continuance of the original action, with the addition of another defendant. The cause of action was unchanged, to-wit: the obligation of the firm of Christal Struthers. The necessity for the amendment arose solely from the fact disclosed by the original answer, that Charles E. Christal was a member of the firm. He having been brought in, the suit proceeded to judgment. If the plaintiffs, instead of obtaining the stipulation of the original defendants to an amendment, had applied to the court for leave to bring in the additional defendant, no doubt could be entertained of the power of the court to grant the relief. The power of the court to amend any process, pleading or proceeding by adding or striking out the name of any party is expressly given. (Code, § 173.) The section referred to, however, is declaratory only. The power to amend process and pleadings is inherent in the court as a part of its ordinary jurisdiction. When a new party is brought in by order of the court, no one, we presume, would claim that a new action was commenced. The party brought in would become a party to an existing action, and not to another and distinct action. Otherwise the original defendants might set up, by answer to the amended suit, a former action pending, and this would be manifestly *291
absurd. The fact that the summons was amended by the stipulation of the parties, without the order of the court, does not, we think, affect the validity of the judgment. The Revised Statutes (2 R.S. 425, § 9) provide that no process shall be amended without the order of the court. But they also provide (2 R.S. 425, § 7) that no judgment entered by default shall be reversed, impaired, or in any way affected for any want of writ, original or judicial, or for any default or defect in process, or any informality in entering a judgment or making up the record thereof, or any default or negligence of any clerk or officer of the court, or of the parties or their attorneys, by which neither party shall have been prejudiced. This section covers the alleged defect on account of the omission to procure the order of the court allowing the amendment. The answer of the defendants had been withdrawn before judgment, and the judgment was entered by default. (See Oakley v. Becker, 2 Cow. 454.) The parties, having consented to the amendment, cannot object to the judgment on the ground that no order was procured; and the principals being bound thereby, the sureties are bound also. (Casoni v.Jerome,
The second ground of defense proceeds upon the assumption that the undertaking to pay any judgment against the original defendants, does not apply to a judgment against them and another defendant brought in by amendment after the undertaking was executed. It is well settled that sureties are only bound by the terms of the obligation, and their liability cannot be extended to cases not within the fair construction and meaning of the language used. (Church v. Simmons,
There are some questions of a mere technical character remaining to be considered. The court allowed a certified copy of the attachment to be given in evidence. The grounds of the objection were, that no authority to issue the attachment had been shown, and that it was not shown that an attachment had been granted. A sufficient answer to the objection is that the evidence admitted was immaterial. Another decisive *293
answer is that the undertaking recited the issuing of an attachment, and that was sufficient proof of the fact. (Coleman
v. Bean, 3 Keyes, 94; Haggart v. Morgan,
We find no error in the record, and judgment should be affirmed.
All concur.
Judgment affirmed.