59 F.2d 25 | 5th Cir. | 1932
Josef Jadrijevics, the plaintiff below, recovered judgment at law in the District Court of the United States for the Canal Zone against H. B. Nelson, doing business under the name of H. B. Nelson Construction Company, for a personal injury received while employed by Nelson, and Nelson appeals.
Shortly after suit was filed a motion was made to require Jadrijevics to give bond for costs as a nonresident plaintiff, in reply to which Jadrijevics under oath and supported by his attorney’s certificate set up his'helpless and impoverished condition, rendering it impossible to give bond or pay costs, and prayed to be permitted, to prosecute his suit in forma pauperis. The court denied the motion to require bond, and granted leave to proceed in forma pauperis under section 819 of the Code of Civil Procedure of the Canal • Zone. This action is assigned as error. On March 22, 1907, President Roosevelt promulgated as of force in the Canal Zone the Code of Civil Procedure, section 819 of which reads: “Any judge or clerk of any circuit or district court may authorize any person to suo as a pauper in their respective courts, when he files an affidavit setting forth facts showing that he has good cause of action, and that he is unable to procure a bond when such bond is required, accompanied by a certificate of a practising attorney in good standing that the plaintiff has fully stated the facts of his claim to him and that the attorney believes he has a good causé of action, and that he further believes the plaintiff is unable to pay the costs of the action or procure bond.” Section 2 of the act of August 24, 1912, 37 Stat. p. 561 (48 USCA § 1309), enacted that all laws, orders, regulations, and ordinances promulgated in the Canal Zone by order of the President for the government of the Zone are ratified and confirmed as valid and binding until Congress shall otherwise provide. Section 8 (37 Stat. p. 565) dealt with the substitution of the present district court for the prior courts, • and declared: “The rules of practice in such district court shall be prescribed or amended by order of the President.” Section 9 (37 Stat. 565) provided further: “All existing laws in the Canal Zone governing practice and procedure in existing courts shall be applicable and adapted to the practice and procedure in the new courts.” The amending Act of September 21, 1922, 42 Stat. 1004, 1005, § 2 (48 USCA § 1344), gives the President the express power also to repeal rules of practice. Section 819 of the Code of Procedure is applicable to this ease if not repealed by the President under his rule-making powers. It is argued that the Code of Civil Procedure is a law adopted by Congress by the act of August 24, 1912, which can be altered only by Congress, and that the President’s power to make, amend, and repeal rules of practice is to be exercised in subordination to the Code. See McConaughey v. Morrow, 263 U. S. 39, 44 S. Ct. 78, 68 L. Ed. 153; 34 Op. Attys. Gen. 475. We find no occasion to decide the point, because no rule subsequently promulgated by the President expressly repeals section 819, and none now in force is in such irreconcilable conflict with it as to raise a question of implied repeal. Rule 7 promulgated by executive order of January 9, 1920, on the subject of suits in forma pau-peris provided that any citizen of the United States might prosecute or defend his suit without prepaying costs or giving bond upon making a stated oath. The right thus given to the citizen to proceed without the consent of the judge does not nullify the authority given the judge by section 819 to permit any person to sue as a pauper upon the conditions there specified. Eaeh provision may have application in circumstances appropriate to it. If it be assumed that this plaintiff is not a citizen but an alien, the judge had pow
The petition alleged on information that IT. B. Nelson Construction Company, which had employed plaintiff in certain construction. work in the Canal Zone, was a corporation or limited company. On the trial it apeared that it was originally a partnership, hut, at the time plaintiff was employed and injured, II. B. Nelson, one of the former partners, was conducting the business alone under the old name. The petition was amended over objection to describe the person sued as H. B. Nelson, doing business as H. B. Nelson Construction Company. Section 103 of the Code of Civil Procedure provides: “The Court shall, in tffriherance of justice, and on such terms, if any, as may he proper, allow a party to amend any pleading or proceeding and at any stage of the action, in either Circuit Court or Supreme Court, by adding or striking out the name of any party, either plaintiff or defendant, or by correcting a mistake in the name of a party, or a mistaken or inadequate allegaiion or description in any other respect, so that the actual merits of the controversy may speodilv he determined, without regard to technicalities, and in the most expeditious and inexpensive manner.” The amendment did not really add a new party, but corrected the mistaken allegation that the person employing the plaintiff was a corporation hv stating that person to be an individual named IT. B. Nelson, hut who did business under the name II. B. Nelson Construction Company. This correction was well within the permission of the liberal rule of practice quoted, provided the person referred to was really before the court. The question is one of service rather than of pleading. The service was made upon W. A. Gillogly, as manager of the company. Nelson himself is assorted in argument not to have been in the Canal Zone. The service was apparently insufficient, but it was never questioned. The defendant appeared by counsel and moved that a cost bond be given, and later pleaded to the merits in all respects, merely denying generally the paragraph whieh alleged the defendant to be a corporation. Such appearance by counsel cured the want of proper service. After the petition was amended, the same counsel continued to represent the defendant, and now appears on this appeal as representing II. B. Nelson. There has been in those proceedings no hindrance to reaching the merits of the controversy, which is the true aim of all procedure. We find no error therein.
The petition alleged that the defendant employed the plaintiff as a laborer in concrete construction work, and was under duty to furnish him a safe place to work, but in disregard thereof ordered him to clean out the pit under a vertical tower in which a heavy iron bucket for conveying concrete worked up and down, which bucket was negligently lowered on him while he was at wor'k at the pit. His proof-showed not that he was sent to clean out the pit, but to remove an iron bar whieh was in it. By section 102 of the Code of Civil Procedure a variance between pleading and proof shall not defeat an action, but, if material and misleading to the opposite party, is to be cured by an amendment upon just terms, the action being determined upon the facts actually established. The defendant did not claim surprise or prejudice because of the variance, or seek a postponement or other just terms, hut moved that a verdict he directed against the plaintiff. To sustain this motion would make the decision of 1he ease depend on the pleadings ral her than on the facts established, in the very teeth of section 102. There was also a variance as to the date of the occurrence, the pleading alleging May 17th, and the more reliable proof showing May 10th. Ordinarily, ihe time alleged is not material, and need not ho preeiselv proven in either a civil or criminal case. No confusion or prejudice whatever appears in this trial because of the date alleged. Peremptory charges based on these variances were properly refused.
Reversed and remanded for further proceedings not inconsistent herewith.