2 Indian Terr. 23 | Ct. App. Ind. Terr. | 1898
The appellant has filed 25 specifications of error, but in the brief of his argument he limits his specifications to five different heads:
First, that the District Court should have directed the jury to return a verdict for the defendant upon the whole case, as well as to each of the animals mentioned in the complaint. Under this head, counsel for appellant first discusses the question of negligence on the part of appellant, and evidently satisfies himself that no negligence was proven, notwithstanding the verdict of the jury. And, second, counsel says: ‘‘ Outside of the question of negligence in this case, there are other reasons why a verdict in favor of appellant should have been directed by the District Court. This suit was originally brought by R. P. Bowles and Barbara White as -joint plaintiffs, claiming a joint interest in each of the five head of cattle, and a joint cause of
“Every action must be prosecuted in the name of the real party in interest, except as provided in sections 4935 4936, 4938. ” Mansf. Dig. § 4933. “Where the assigment of a thing in action is not authorized by statute the assignor must be a party, as plaintiff or defendant.” Id. §4934. Section 4935 relates to transferring or assigning the right of plaintiff during the pendency of the action, which was not done in the case at bar. The authorities cited, and apparantly relied upon by appellant, relate to cases where changes were made from a representative to an individual capacity, or vice versa, and, as it seems to us, are not in point, as applied to the facts of this case. There is certainly no new cause of action set up, and the record shows that Bowles was an interested party by the assignment of Mrs. White, and the records show Bowles to have been in possession of the cattle at the time they were killed. “One who is in the possession of goods may maintain trespass against a mere wrong-doer, without showing his rights to them, possession alone being sufficient for the purpose of the action, with respect to every one except the owner.” 6 Wait, Act. & Def. p. 98. The appellant would not have been prejudiced by the parties remaining as they were, and neither was appellant prejudiced by the amendment, for the real parties in interest remained the same. ‘ ‘The allowance or refusal' of amend-
“Sec. 5080. The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of any party, or a mistake in any other respect, or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense,.by conforming the pleading or proceeding to the facts proved.”
The foregoing disposes of the second specification in the brief of argument.
The third, fourth and fifth specifications apply to the charge of the court, the introduction of evidence, and the ruling on motion for new trial. An examination of the charge of the court shows the same to be very full and explicit, as to the proof of negligence being shown to the satisfaction of the jury, and substantially complies with the request of defendant in his specifications of error Nos. 14,