Phelps Manufacturing Co. v. Enz

19 Conn. 58 | Conn. | 1848

Hinman, J.

The defendants are a copartnership. At the time of commencing the suit, the names of some members of their firm were unknown to the plaintiffs. The action was, therefore, brought against them, by their copartnership or company name. This being authorized by the statute of 1837, {Stat. 77. ed. 1838.) was in every respect regular. But the plaintiffs were unable to obtain the individual names of all the defendants, in time to amend, by inserting them in the writ within the three first days of the term. They did, however obtain them, during the first term of the court ,; and the question is, whether it is competent for the court to authorize the amendment contemplated by the statute, to be made after the three first days of the term have expired. The defendants insist that this cannot be done. It is said, that inasmuch as such amendment was wholly unauthorized, previous to the act of 1837 ; and as that act does not, in terms, authorize it, except within the three first days ; there is no power in the court to bring a new party upon the record, after those days have expired, unless in the instances provided for, in the 2d section of the act. If this were a penal statute, or of a character to require a literal construction, there would be force in this argument. Undoubtedly, by the strict letter of the act, no express authority is given for this amendment. The three days, within which such amendments must generally be made, had expired ; and there was no plea in abatement, and no such affidavit by a defendant as is mentioned in the 2d section of the act. But the obvious intention of the legislature was, to facilitate the bringing of suits, in causes where copartnerships were concerned. The delay necessary in order to obtain all the names of the members of a firm, often caused great injury to parties. They were frequently obliged to forego their only opportunity to secure a debt. The act was passed to remedy this evil. It introduces a new rule of practice, in certain cases; and this is its whole object. It may be well doubted, whether the same object might not have been accomplished, by a rule of court, merely. To adopt such a rule would be going but little, if any, farther, in regard to actions at law, than has always been practiced in courts of equity. Nothing is more common there, than the practice of bringing new parties upon the record, as often as it is discovered that there are parties in interest, who have not been made parties to the suit. This practice those courts have introduced, for their own convenience, and in order to do complete justice. There may be more necessity for it in chancery, than in courts of law; but in regard to the power to make rules on the subject, there can be no difference.

However this may be, we cannot doubt that a statute, merely introducing a more just and beneficial rule of practice, ought to be liberally construed, in order to carry out the intention of the legislature. The question, therefore, is, whether the plaintiffs’ application is within the equity of the statute f and we are well satisfied that it is. They were ignorant of the names of some of the partners in the defend- . . . . . ants’ firm ; and accordingly brought their suit m the provided in this statute. Thus far, we have seen, every thing was within the very letter of the law. They then applied to the partner in New-York for the names of his associates; but, for some reason, he refused to give them; and they could not be obtained in time to amend within the three first days of the term, although all reasonable diligence was used for that purpose. Under these cirenmstances, it seems but reasonable, that the plaintiffs should have liberty to amend, in the same manner they could have done within the prescribed time, if they had possessed the requisite information at the commencement of the term. And so we advise the superior court.

In this opinion the other Judges concurred.

Motion to be allowed.