Thanhauser v. Savins

44 Md. 410 | Md. | 1876

Bowie, J.,

delivered the opinion of the Court.

The question presented by the bill of exceptions in this case, is whether the appellee, who instituted suit against the appellant, in the Court of Common Pleas, and declared in the name and by the description of “B. Savins,” could amend the writ and proceedings in the cause, by inserting the real name of the plaintiff, viz., “Benjamin,” for “B.” The defendant pleaded in abatement, “that the plaintiff’s name was not CB. Savins,’ but that his real name was unknown to him.” The plaintiff demurred to the plea, but afterwards withdrew his demurrer, and asked leave to amend by inserting as above, to which the defendant objected, but the Court overruled the objection and allowed the amendment as prayed, to which ruling and action of the Court, the defendant excepted.

This involves the construction of Art. 75 of the Code, title “Pleadings, Practice and Process,” secs. 23, 25, 26, 28, 29. Although, from the general spirit of the Article, manifested in the introductory sections, the most liberal system of pleading seems to have been designed by the Legislature ; and sec. 23, standing alone, appears broad enough to warrant any amendment, yet contemporaneous construction has held otherwise.

Mr. Evans, in his work on Practice, (2nd Ed.,) says: “It may be briefly said that every pleading may, in Maryland, be amended in every conceivable way. To this sweeping assertion it is only necessary to make three exceptions. The first is, that when the plaintiff’s attorney has mistaken his client’s name, he is not allowed to amend his error,” etc. Evans’ Prac., 150.

“ It grows out of the omission in the Oocle of all provision upon the subject.” ******** “The present law in relation to the amendment of pleadings will be found in the Code, Art. 75, secs. 23 to 33, both inclusive. The general effect has been stated in the last paragraph.”

However- much some may regret this apparent anomaly, it is explained by the learned writer in the brief but terse expression, “It grows out of the omission in the Code,” etc.

At common law such amendments lucre not admissible. All amendments of pleadings are authorized by statutes of Jeofails, and where these statutes are silent, the right of amendment does not exist. The Code is but a condensation of the several statutes of our State upon this subject; wherever it speaks affirmatively, it negatives the enlargement of the right of amendment to another class of parties, unless a general expression, embracing the latter, is used. “Expressio unius est exclusio alterius.”

There is much force in the appellant’s argument as to section 23, that if it was .intended that this section should confer power on the Court to permit amendments of any kind, why were sections 25, 26, 27, 28 enacted; they were superfluous and nugatory. It appears from Mayer's List of the Correlative Acts of Assembly, that sec. 23, Art. 75, is the codification of the Acts of 1852, ch. 177, 1785, ch. 80, sec. 4, 1809, ch. 153.

Under these Acts, the writ could not be amended. When that was to be done, it must be by the titling or by some other part of the proceedings, agreeably to the law prior to such Acts of Assembly. Stoddert vs. Newman, 7 H. & J., 251.

It was held in the case of The State vs. Green, 4 G. & J., 381, and Berry vs. Harper, 4 G. & J., 467, that the Court could not authorize the amendment of the writ.

It is unnecessary to trace the codification of the subsequent Acts of Assembly, relating to amendments, further than to observe they all relate to distinct subjects, not embracing the amendment sought for in this case. Sec. 25 applies to the misnomer of the defendant; sec. 26 authorizes the Court, in case of a non-joinder or mis-joinder of plaintiffs, to allow an amendment by which á plaintiff may he added or stricken out, as the case may require.

Sec. 27 refers to mis-joinder or non-joinder of defendants.

Sec. 28 provides for mis-joinder or non-joinder of plaintiffs or defendants, etc., all special and distinct subjects, yet covered by the language of sec. 23, if the latitudinous construction is adopted.

Sec. 29 declares, in amendments for mis-joinder, etc., entire new parties (either plaintiffs or defendants) cannot be introduced, but some of the original plaintiffs or defendants must remain, ‘Land in no case of amendment can entire new parties, either plaintiffs or defendants, be made.”

In the case of a sole plaintiff or defendant, the prima facie evidence of identity of the party is the name; if the name is changed, the party is changed, as far as the record is qoncerned; but provision is made for the correction of tbe misnomer of the defendant, by section 25 ; no remedy is, however, provided for the misnomer of the plaintiff.

(Decided 9th March, 1876.)

. It is obvious that the plaintiff must be supposed to- know his own name. The difficulty of always ascertaining the defendant’s may account for the provision in case of his misnomer, but where no such reason exists, “ cessante causa cessat effactus.” Many inconveniences might result from too great facility in making such amendments. For these reasons the judgment below will be reversed.

Judgment reversed.