32 Miss. 194 | Miss. | 1856
delivered the opinion of the court.
The record in this case presents a question arising under the act to change the form of pleading in the Circuit Courts.
The suit was originally instituted in the name of Malley Fox, the nominal plaintiff; for the use of Wiley B. Woodward, against the defendants in error. At the return the defendants pleaded in abatement, that.Malley Fox was dead before the commencement of the suit. Woodward, the real plaintiff, confessed the plea, and upon motion was allowed by the court to amend his declaration by striking out the name of Fox, and inserting that of Samuel Den-ton, his administrator. Whereupon the defendants filed several pleas to the action, on which issue was joined, and the cause continued. At the ensuing term the defendants moved to dismiss the cause, for the same reason which at the previous term was pleaded in abatement. This motion was sustained, and the suit dismissed.
If it were conceded to have been improper to allow the amendment to be made, the method of correcting it was certainly not by motion to dismiss the suit at a subsequent term, the defendants in the meantime having pleaded to the action. Their only remedy was by appeal or writ of error to this court, prosecuted after final judgment.
But the amendment was fully authorized by the statute. The thirteenth and fourteenth sections of which provide that the “court may. at any time amend the pleadings by striking out or adding the name of any partyand that “suit may be instituted against a party by a fictitious name, and when his true name is ascertained it may be inserted.” Art. 185, p. 62.
Judgment reversed, and cause remanded.