Nugent v. Adsit

Nov 18, 1892
Reporters:
,
Per Curiam.

The relator asks for a writ of mandamus to compel the respondent to vacate an order allowing an amendment to the declaration in a ‍​​‌​​​‌‌​‌​​​​​​‌‌‌‌‌​​‌‌​​‌‌‌‌‌​​​‌​‌‌​​​​​‌‌​‌‌​‌​​​‌‌‌​​‌‌​​​‌‌‌​‌​​‌​​​​​​‌‌​​​​​‌‌​​‌​‌​‌​‌‍suit instituted by John Bresnahan, as administrator of the estate of Daniel Nugent, against the relator.1

The declaration, as originally framed, counted on an alleged fraudulent transfer to the relator of certain personal property by Daniel Nugent, which transfer plaintiff claims he is entitled to attack ‍​​‌​​​‌‌​‌​​​​​​‌‌‌‌‌​​‌‌​​‌‌‌‌‌​​​‌​‌‌​​​​​‌‌​‌‌​‌​​​‌‌‌​​‌‌​​​‌‌‌​‌​​‌​​​​​​‌‌​​​​​‌‌​​‌​‌​‌​‌‍in the right of creditors. A portion of the property described in the declaration and alleged to have been converted is an item of “ 953 *463bushels of wheat, $1,040.” After one trial of the case, aud. at a time when the statute of limitations would constitute a bar ‍​​‌​​​‌‌​‌​​​​​​‌‌‌‌‌​​‌‌​​‌‌‌‌‌​​​‌​‌‌​​​​​‌‌​‌‌​‌​​​‌‌‌​​‌‌​​​‌‌‌​‌​​‌​​​​​​‌‌​​​​​‌‌​​‌​‌​‌​‌‍to a new action, the plaintiff was permitted to amend his declaration by striking out this item, and inserting in place thereof, “31 acres of growing-wheat, $800.”

It has been repeatedly held that the court has no power to permit an amendment which introduces a new ‍​​‌​​​‌‌​‌​​​​​​‌‌‌‌‌​​‌‌​​‌‌‌‌‌​​​‌​‌‌​​​​​‌‌​‌‌​‌​​​‌‌‌​​‌‌​​​‌‌‌​‌​​‌​​​​​​‌‌​​​​​‌‌​​‌​‌​‌​‌‍cause of action after the same has become barred by the statute of limitations. Gorman v. Circuit Judge, 27 Mich. 138; Michigan Central R. R. Co. v. Circuit Judge, 35 Id. 227. Upon full consideration, we feel constrained to hold that the amendment allowed in this cause did permit ‍​​‌​​​‌‌​‌​​​​​​‌‌‌‌‌​​‌‌​​‌‌‌‌‌​​​‌​‌‌​​​​​‌‌​‌‌​‌​​​‌‌‌​​‌‌​​​‌‌‌​‌​​‌​​​​​​‌‌​​​​​‌‌​​‌​‌​‌​‌‍the plaintiff to introduce a new cause of action, and that, therefore, the circuit judge exceeded his authority.

The mandamus will issue as prayed.

Notes