95 Pa. 15 | Pa. | 1880
delivered the opinion of the court,
The contention of the plaintiff in error is that he was discharged from liability as surety on the property bonds in consequence of the amendments in the replevin suits, made without authority of law, as he claims, and without his knowledge or consent. The actions gf replevin were brought by Henry P. Duncan, Samuel Duncan and Stephen Duncan, executors of the last will and testament of Stephen Duncan, deceased, against Eli H. Dunn et ah, who claimed the property replevied, gave bonds to the sheriff in the usual form, and pleaded non eepit and property, upon which issue was joined. Subsequently, on application of the plaintiffs, an amendment was allowed in each case, by which the words “ executors of the last will and testament” were stricken out, and the words “heirs at law” substituted, and the names of other'heirs at
If the amendments were unauthorized, it will scarcely be pretended that the surety in the property bonds would not be discharged. But so far as the records in the replevin suits given in evidence in this case have been brought to our notice, there is nothing to show that the amendments were either unauthorized or irregular; on the contrary they appear to have been within the letter and spirit of our statute of amendments. They consisted, as we have seen, first in changing the character in which the plaintiffs sued from executors to heirs at law, and secondly, in adding the names of other heirs at law who were not executors. Amendments, similar in principle, have been frequently sanctioned: Kaylor v. Schaffner, 12 Harris 489; Schollenberger v, Seldonridge, 13 Wright 83; Cochran v. Arnold, 8 P. F. Smith 399; Wescott v. Edmonds, 18 Id. 34. It is said in Kaylor v. Schaffner, supra, that whenever it appears a mistake has occurred “ it is the duty of the court to correct it, taking care that the amendment be not used for the purpose of introducing a cause of action substantially different from that on which the suit was actually though informally brought.”
The case before us is distinguishable from Kille v. Ege, 1 Norris 102, in this, that the original plaintiffs in that case had no cause of action, either in their own right or in any representative capacity, and were accordingly nonsuited. The plaintiffs who recovered were new parties, brought upon the record two years after suit was commenced, strangers to the original plaintiffs and in no way connected with them by privity of interest or otherwise. The three plaintiffs who originally sued in this case were in fact heirs at law of Stephen Duncan, deceased, and the mistake that appears to have been made was in styling them executors instead of heirs; and that was clearly amendable. There was no change in the cause of action. The basis of claim before as well as after the amendment appears to have been title derived from Stephen Duncan, deceased. The parties brought upon the record were not strangers to the claim. They were joint heirs with the original parties, and all derived title to the property in controversy from a common source.
It follows, therefore, that the defendant had no available defence, either on the ground that the amendment was unauthorized, or that it introduced a new cause of action.
But, it is further contended that, inasmuch as there could have been no recovery by the original plaintiffs in their capacity as executors, the effect of the amendment was to change or increase the
What has been said has reference only to such amendments as are authorized by the statutes. If a new cause of action is introduced or new parties brought upon the record against whose
The conclusion reached by the learned judge in this case was correct.
Judgment affirmed.