80 Neb. 769 | Neb. | 1908
This case is here for the second time. On its first appearance in this court it appeared under the title of “Morris Meyer, Plaintiff in Error, v. Omaha Furniture & Carpet Company, Defendant in Error.” 76 Neb.” 405. Meyer was defendant and the Omaha Furniture & Carpet Company plaintiff, in the court below. In the briefs filed by both sides on this hearing the parties are again designated as “Omaha Furniture & Carpet Company v. Morris Meyer,” but in the assignments of error, and in the praecipe filed on this hearing by defendant Meyer, the case is entitled “Omaha Furniture & Carpet Company and Henry
This was an action in replevin instituted originally in the name of the Omaha Furniture & Carpet Company v. Morris Meyer et al. before a justice of the peace i-n Douglas county. In the justice court the point was made by defendant that plaintiff was not the real party in interest, and had no legal capacity to sue. Plaintiff asked leave to substitute the name of Henry J. Abrahams as party plaintiff, claiming that he was the real party in interest; that he was doing business in the name of the Omaha Furniture & Carpet Company, and was the sole owner and proprietor of the business conducted under such name. This request was denied in the justice court, and judgment rendered for the defendant. Plaintiff appealed to the district court, in which court a petition was filed in which it was attempted to state facts sufficient to show the authority of the plaintiff under the name of the Omaha Furniture & Carpet Company to maintain the action. Defendant filed a motion to strike the petition from the files upon the ground that it showed on its face that plaintiff was not the real party in interest. This motion being overruled, defendant was given leave to demur instanter, and he did so, alleging as grounds of demurrer that plaintiff had no legal capacity to sue; that the petition showed upon its face that it was not prosecuted in the name of the real party. in interest, and that the petition failed to state a cause of action against the defendant. The demurrer was overruled, and judgment entered in favor of plaintiff, from which judgment the defendant appealed. This court reversed the judgment of the court below, and remanded the case “for further proceedings according to-law.” In the opinion by Oldham, C., it is said:- “When-the cause was removed by appeal to the district court,
Defendant rests his right to a reversal of the judgment of the court below on Flanders v. Lyon & Healy, 51 Neb. 102, on the strength of which case this court reversed the case on the former hearing. We do not think Flanders v. Lyon & Healy is in point on the present hearing. In that case an attempt was made to substitute an entirely different party plaintiff, the motion being for leave to substitute P. J. Healy as plaintiff in place of the firm of Lyon & Healy, “for the reason that the note and mortgage on which this action is based have been assigned to said P. J. Healy, who now owns the same.” This court very properly held that “in a replevin suit, where the plaintiff has taken the property, it is error to permit a stranger to be substituted for the original plaintiff over defendant’s objection.” On the former hearing of this case no question of the right of substitution was raised. The point in controversy then was that plaintiff’s petition on its face failed to show the capacity of the Omaha Furniture & Carpet Company to sue. The question now before the court is: Did the court err in permitting the substitution of Henry J. Abrahams as plaintiff in lieu of the Omaha Furniture & Carpet Company? The amendment allowed simply permitted the correction of the name of the plaintiff; the name “Omaha Furniture & Carpet Company,” under which Abrahams did business, having been used as the name' of the plaintiff instead of Mr. Abrahams’ individual name. This was not permitting the substitution of a stranger, but was simply permitting the correction of the name.
Section 144 of the code reads: “The court may, either before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a
If what defendant states in his brief as to the character of plaintiff and the merits of the controversy in this action, if they had been gone into, is true, it is to be regretted that defendant did not file his answer and proceed to trial upon the merits; but, having elected to stand upon what he believed to be Ms technical rights, and having 'permitted judgment to go against him, we do not see how we can relieve him from the situation in which he has permitted himself to be placed.
We recommend that the judgment of the district court he affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.