72 P. 385 | Utah | 1903
after making the foregoing statement of the case, delivered the opinion of the court.
There are two questions raised by this appeal: First, did the court err in denying plaintiffs’ motion to amend their complaint by substituting the personal representative of the deceased as party plaintiff, in lieu of the beneficiaries, present plaintiffs? and, second, can the plaintiffs, who were not proper party plaintiffs in tbe court below, be heard in this court on appeal?
The general rule respecting the first proposition is
In volume 20, Ency. PL and Pr. 1027,1028, the rule is stated as follows: ‘ ‘ Subject to the general rule above stated, that a substitution of parties which operates to change the original cause of action cannot be allowed, the personal representative of a decedent may be substituted in place of the heirs or distributees or widow, in actions relating to the estate, or, vice versa, the hears or widow may be substituted in the place of the personal representative. ’ ’ The doctrine is supported by the following cases: 20 Ency. Pl. and Pr., 1027, 1028; Bender v. Luckenbach, 162 Pa. 18, 29 Atl. 295, 296; Merrill v. Woodbury, 61 N. H. 504; Teutonia Life Ins. Co. v. Mueller et al., 77 Ill. 22; Wood v. Circuit Judge, 84 Mich. 521, 47 N. W. 1103; Van Doren v. Penn. R. Co., 35 C. C. A. 282, 93 Fed. 260; Person v. Fidelity & Casualty Co., 35 C. C. A. 117, 92 Fed. 965; U. S. Ins. Co. v. Ludwig, 108 Ill. 514.
Section 3005, Revised Statutes 1898, in part provides that the court may, in the furtherance of justice, allow a party to amend any pleading or proceeding by adding or striking out the name of any party. By giving the provisions of this section of the statute the liberal construction contemplated by section 2489, Id.,, which provides that the provisions of the statutes and all proceedings under them shall be liberally construed, with a view to- effect their object and to promote justice, we think the amendment could and ought to have been allowed, and that it was error to reject it.
In the case of Skews v. Dunn, 3 Utah 186, 2 Pac. 64, cited by counsel for respondent, William Skews, plaintiff, commenced an action in his own name on two-
It will be seen that the principles involved in that case are not at all similar to those now under consideration, and the majority of the cases cited by counsel for respondent are cases in which parties who were in fact strangers to the suits at the time they were commenced were asked to be substituted in place of the parties who commenced the actions, and did not come within the exception to the general rule above stated. As the
There are a number of other questions discussed
Tbe case is reversed, with directions to tbe trial court to reinstate tbe case and allow plaintiffs to amend. Costs of tbis appeal to be taxed against respondent.