Dubbers v. Goux

51 Cal. 153 | Cal. | 1875

By the Court:

The court erred in permitting Mrs. Dubbers to be substituted for her husband as plaintiff. It is not pretended that she had succeeded to any interest held by her husband pending the action, nor that she had any joint interest with him in the subject-matter. On the contrary she was substituted as plaintiff on the theory that she was the only-party in interest at the commencement of the action, and had ever since continued to be so. She was permitted to become the sole plaintiff, not to prosecute the same cause of action stated in the complaint, on the ground that she had succeeded to it, but another and distinct cause of action in her separate right. In effect, it was permitting her to prosecute a new suit, for another cause of action, by merely substituting her as sole plaintiff in the former action. It is scarcely necessary to say that section four-hundred and seventy-three of the Code of Civil Procedure affords no warrant for such a proceeding.

Judgment reversed and cause remanded.