51 Neb. 102 | Neb. | 1897
Lyon & Healy, a corporation, brought this action in replevin before a justice of the peace for a piano, piano stool and cover, claiming the same under a chattel mortgage. The plaintiff gave bond and the property was delivered to it under the writ. Subsequently a motion was filed by Lyon & Healy for leave to substitute P. J. Healy as plaintiff, “for the reason that the note and mortgage on which this action is based have been assigned to said P. J.. Healy, who now owns the same.” A motion was also filed by P. J. Healy asking on his part that he be made plaintiff instead of Lyon & Healy. These motions were sustained over the objection and exception of the defendant, and Healy substituted for the corporation of Lyon & Healy as plaintiff. The defendant made no further defense and judgment was rendered for the plaintiff. Defendant took error to the district court, assigning as error the substitution of Healy for the corporation. The district court affirmed the judgment of the justice, and the defendant seeks by these proceedings to reverse the judgment of affirmance rendered by the district court. On the one side it is argued that the substitution was made because it appeared that the note and mortgage never had belonged to Lyon & Healy, but to P. J. Healy. sOn the other it is assumed that there had been a transfer of interest after the institution of the suit. Certain depositions appear in the transcript as filed in the district court, but there was not, and could not at that time have been, any bill of exceptions embodying the evidence before the justice on the hearing of the motion. (Moline, Milburn & Stoddard Co. v. Curtis, 38 Neb., 520.) We must therefore proceed upon the assumption that the evidence was such as to justify the action of the justice, if such
Section 144 of the Code px*ovides: “The court may, either before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding by addixxg or striking out the name of any party, or by correcting a mistake in the name of a party.” Under similar provisions it has generally been held that the object of this provision is to cure misjoinders, or non-joinders, and mistakes in the names of parties, and that it does not permit a sole party plaintiff to be dismissed and a new plaintiff substituted. To permit this would be to create a cause of action, perhaps, ixx the new plaintiff, where none existed in the original plaintiff when the suit was begun. (Davis v. Mayor of New York, 14 N. Y., 506; Leaird v. Moore, 27 Ala., 326; Dubbers v. Goux, 51 Cal., 153; Gresham v. Webb, 27 Ga., 320.) There are some cases stating a different rule, but under this the substitution of parties is held not to be a matter of right, but a power to be exercised in the discretion of the court, and it is clear that it should not be exercised where it would operate to the prejudice of the adverse pax’ty. (Strickland v. Bridges, 21 S. Car., 21; Hubler v. Pullen, 9 Ind., 273; Hanlin v. Baxter, 20 Kan., 134.) What it was sought to do in this case was not merely to correct a mistake whereby the proper plaintiff had been ixnproperly designated, or to remedy a non-joinder by adding a new plaintiff, but to substitute actually a party claiming ownership to the replevied property for an entirely different, party who had seized it under the writ of replevin, and to dismiss the former party from the case. This right is claimed under section 45 of the Code, which provides: “An action does not abate by the death, marriage, or other disability of a party, or by the transfer of any in
The judgment of the district court is reversed and the cause remanded, with directions to the district court to reverse the judgment of the justice of the peace, and for further proceedings not inconsistent with this opinion.
Reversed and remanded.