Kau Ting Kee v. Yim You

14 Haw. 112 | Haw. | 1902

OPINION OP THE COURT BY

PERRY, J.

This is an action of assumpsit instituted in the District Court of Koolaupolco, Oahu, for compensation for labor performed by the plaintiff for the defendant, at the latter’s request, in 1900 and 1901. The defendant was named in the declaration as Yim You. Service of summons was made as shown by the return endorsed thereon, on “Keaialaina and Ah Puck for Yim, You.” Judgment having been rendered for the plaintiff, an appeal was taken to the Circuit Court of the First Circuit, jury waived, the noticq of appeal being signed “Yim You by their attorneys, Ma-goon-.and Thompson.” In the Circuit Court, Ah Puck, making a special appearance for the purpose; moved that the action be dismissed as to himself on the ground that no service had been made either upon himself or upon the defendant. Counsel for the plaintiff thereupon moved to be allowed to amend the declaration “by inserting tlie name of Ah Puck instead of Yim You.” The Court denied this motion giving as its reason for such denial that the amendment if permitted would constitute a change of parties defendant. Counsel for the plaintiff then asked for leave to amend the declaration “so as to read Kealina and Ah Pak, doing business under the firm name and style of Yim You.” This request, also, was refused and, counsel for plaintiff haAung in the meantime stated in court that Yim You had been dead sixteen years, the motion to dismiss Avas granted. The plaintiff’s exceptions noAV before this court are to the order of dismissal and to the denial of the second motion for leave to amend.

Our statute is liberal Avith respect to amendments, permitting such “in any matter of mere form, or by adding or striking out the name of any party, or by correcting a mistake in- the name of the party.” Where, however, by the proposed amendment a substitution of one or more persons for the sole party defendant is to be accomplished, it is at least not error for the trial court to decline to permit such amendment. In the case at bar the second proposed amendment is sought to be justified on the theory that the “Yim You” named in the declaration as the defendant was a partnership and that the omission of the names of the partners was a mistake, in a matter of mere form, which can under the statute be corrected. There is nothing in the record to bear out this theory; on the contrary, such indications as are to be found vrould seem to show that the Yim You against whom the action Avas brought Avas an individual. In the declaration no reference to or suggestion of a partnership appears'. The order in the sumi mons is to notify Yim You that upon default judgment- will be rendered against Mm. The return is that service was made on the two persons there named, not as co-partners, but for Yim You, presumably on the supposition that they were his agents or representalives. Counsel for defendant, in attempted avoidance of the motion to dismiss, asked to be permitted to insert in the declaration the name of Ah Puck instead of that of Yim You and, when the court intimated that that could not be granted because it would be a change of parties, added that he believed the statute allowed a change of parties, thus disclosing his-own understanding that it was an individual who was-being sued. The plaintiff’s own testimony in the District Court was that he “worked with him” (meaning the defendant) from December 8, 1900, to June 25, 1901, and not that he worked with them or with the- firm or partnership.

Russel & Watson for plaintiff. J. A. Magoon and T. I. Dillon for Ah Puck.

No waiver of the defect- by general appearance or otherwise,' has- been shown. Kealaiaina has not appeared at all. Ah Puck in the Circuit Court appeared specially and in the District Court, as shown by the Magistrate’s record, did not appear for himself or as a defendant but merely for Yim You. The form of the signature to the notice of appeal is not sufficient to show' an appearance by the two persons served or either of them. More>over, the judgment- appealed from is described in the notice as having been rendered against this defendant and not against these defendants.

In our opinion, the rulings excepted to- were, under the circumstances, not error. The exceptions are overruled.