279 P.2d 467 | Nev. | 1955
By the Court,
Petition for certiorari to review certain orders of the respondent court in a trial de novo from the justice’s court allowing certain amendments to the plaintiff’s complaint, which petitioner alleges were without the jurisdiction of the district court to make.
A claim was filed in the matter of the estate of Jack K. Good, deceased, by claimant named as “A & S Machine Shop,” to which was attached a statement naming the creditor as “A & S Machine Shop Frank S. Saunders.” The verification of the claim was made by Frank S. Saunders on the printed form furnished by the clerk reciting, “the undersigned being duly sworn, says that he is the creditor named in and who makes the foregoing claim * * The claim was for $192.50, comprising $189 labor and $3.50 material in the furnishing of a “ladder hook.” The hours comprising the labor were itemized as to dates, amounts, etc. The claim was rejected by the administratrix and suit on the rejected claim was filed in the justice’s court of Sparks township by “Frank S. Saunders, dba A and S Machine Shop vs. Pearl Good, as Administratrix, etc.” The plaintiff alleged that he was the owner of the A & S Machine Shop and had filed a certificate of doing business under a fictitious name as required by statute. He alleged the furnishing of the labor and the material to the decedent by the plaintiff and the filing and rejection of the claim against the administratrix. The justice of the peace entered judgment for the defendant administratrix, including an attorney fee of $75. After the appeal was lodged with the district court the petitioner herein took the deposition of Frank S. Saunders, who testified (in reduction to narrative form) as follows: “I own the A & S Machine Shop. It is a corporation, a family affair, father, son and mother. I am the manager,
Petitioner contends that the district court had no jurisdiction to permit the amendment on appeal, (1) because there was no showing of a change of circumstances, (2) because the same resulted in the statement of a new cause of action, (B) because the amendment substituting parties on appeal brought in a party not a successor in interest to the substituted party and one not asserted to be affected by the judgment appealed from, (4) because the substitution was made after expiration of the time within which an appeal from the justice’s court could be taken, and (5) because the amended claim filed in the estate proceeding was after expiration of time for filing of claims and resulted in the statement of a new claim. It is our opinion that these assertions of lack of jurisdiction are all without merit.
Relying on Paul v. Armstrong (reprint, 1-2 Nev. 70), 1 Nev. 82, petitioner contends that in a trial de novo in the district court upon an appeal from a justice’s
Rule 21 N.R.C.P. concerning misjoinder and nonjoinder of parties reads:
“Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.”
Rule 15 (a) concerning amended and supplemental pleadings provides, first, when the pleading may be amended as of course and then provides: “Otherwise a party may amend his pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Subdivisions
In Paper Container Mfg. Co. v. Dixie Cup Co., 74 F. Supp. 389, a proceeding was brought in the U.S. District Court for the District of Delaware under R.S. sec. 4915 to obtain a patent after a decision by the Board of Interference Examiners. Under the facts the Reconstruction Finance Corporation, as assignee of the patent, was held to be an indispensable party. The plaintiff, as of course and before the filing of a responsive pleading, filed an amendment to the complaint under Fed. Rules Civ. Proc., Rule 15(a), 28 U.S.C.A., to bring in the R.F.C. as a party plaintiff. Defendant moved to strike the amendment, first, because it was not filed by leave of court as required by Rule 21 and, secondly, because the court had no jurisdiction to accept the amendment because the bringing in of an indispensable party plaintiff was not made within the six months’ period prescribed in R.S. sec. 4915, 35 U.S.C.A. sec. 63,
On appeal, Paper Container Mfg. Co. v. Dixie Cup Co., 170 F.2d 333, 339, the Circuit Court of Appeals for the Third Circuit, reversed that part of the order which dismissed the bill because not filed within six months after the decision of the Board of Interference Examiners, and held that the bill, as filed by Paper Container was timely even though R.F.C. was not joined as a plaintiff. As to the subsequent amendment, the appellate court emphasized the fact that the R.F.C. was an indispensable party and that the action could not proceed to a conclusion without its being joined as a party. The
In In re Eastern Distilleries Corporation, 47 F. Supp. 330, 332, the stockholders of the corporation owning all its outstanding shares entered into an agreement with the defendant whereby the latter agreed to lend money to the corporation under certain conditions. The corporation ratified and confirmed the agreement, agreed to be bound by its terms and did and performed certain things thereunder. After partial performance, the defendant refused to continue with its agreement, to the alleged damage of the corporation, and suit for damages was brought by the trustee in bankruptcy of the corporation. Defendant moved to dismiss for nonjoinder of the contracting stockholders. The court referred to the general rule that an action on a simple contract must be brought by the person from whom the consideration actually moved and not by a stranger to the consideration. As the stockholders had covenanted that the corporation do certain things and perform sundry acts, the court said: “I cannot persuade myself that Eastern is a ‘stranger to the consideration’,” and held that the “nearness of relation” between the promisee and the beneficiary furnished an exception to the rule stated, citing Mellen v. Whipple, 1 Gray, Mass. 317. And see Micheletti v. Fugitt, 61 Nev. 478, 486, 487, 134 P.2d 99, where
We are of the opinion that the reasoning of the foregoing, and other similar opinions, should guide us in the instant case, to the end that the exercise by the learned district judge of his discretion in permitting the amendments in the furtherance of justice should not be disturbed. We think it in accordance with the mandate of Rule 15 (a) N.R.C.P. that leave to amend shall be freely given when justice so requires.
The petition for a writ of certiorari is denied and the proceedings dismissed.
Tbe quoted clause, taken out of context, is misleading. Though we may assume for the sake of argument that such is the general rule, in the case cited it was applied to permit, and not to restrict, a right of review of the judgment of ejection by a justice’s court where that court had, in excess of its jurisdiction, entered a judgment by confession. As no issues were raised in the justice’s court, there was nothing to be retried on a trial de novo and, an appeal being thus unavailing, certiorari was held proper. The right to assert and prove a defense (lack of notice etc. before ejectment) was preserved by the district court and affirmed by this court. We achieve the same result here, although the right preserved is the cause of action of the plaintiff rather than the defense of the defendant. Nor is Martin v. District Court, 13 Nev. 85, holding that a default in the justice’s court left no issues to be tried in the district court, applicable here, where the defendant’s answer denied that any materials or labor were furnished to the decedent.
1952 Revision 35 U.S.C.A., sees. 145, 146.
Emphasis should be given to the references by the court in this case and by the court in the Eastern Distilleries Corporation case, infra, to the bringing in, by amendment or motion under the rules, of an additional indispensable party plaintiff. Such emphasis is important by reason of earlier rulings which though conceding the propriety of an amendment to add an additional proper party, questioned the right to bring in an indispensable party omitted from the original pleading.
See. 9882.123, N.C.L. 1931-41 Supp. (the amendment of Stats. 1953, 505, not then being in effect) provided: “Within fifteen days after the time for filing claims has expired, as hereinbefore provided, the executor or administrator shall examine all claims filed and endorse on each claim his allowance or rejection * * Sec. 9882.124 provides in part: “When a claim is rejected * * * the holder shall be immediately notified by the executor or administrator, and such holder must bring suit * * * within thirty days after such notice * * * otherwise the claim shall be forever barred.”