Hallett v. Larcom , 5 Idaho 492 ( 1897 )

SHLLiyAN, O. J.

This action was originally brought by Fred N. Hallett, as plaintiff, against the defendant, R. E. Lar-com, for the recovery of $599:42, money alleged to have been advanced for the defendant, at his special instance and request, while said Hallett was acting as the agent for the defendant in leasing and taking care of certain lands belonging to defendant, situated in Nez Perces county, and collecting rent therefor. The defendant answered, denying all of the allegations of said complaint. Thereafter said Hallett, by motion, asked the court to be permitted to file an amended complaint, whereby M. E. Hallett should be made plaintiff in said action, which motion was granted by the court, regardless of defendant's objection thereto. Thereafter defendant answered, denying'all of the allegations of the amended complaint. The cause was tried by the court with a jury, and verdict and judgment were in favor of the plaintiff for the full amount claimed. A motion for a new trial was made by appellant, and denied by the court. This appeal is from the judgment and from the order denying the motion for a new trial.

Forty-three alleged errors are assigned. But, in our view of the case, it is only necessary to dispose of the first, which is, the court erred in allowing Fred N. Hallett to file an amended complaint whereby M. E. Hallett was made plaintiff in his stead. No showing was made for the substitution of M. E. Hallett as plaintiff in place of Fred N. Hallett. ■ It was not shown that she (M. E. Hallett) had succeeded to the claim of Fred N. Hallett as set forth in the original complaint as a cause of action. The “amended complaint,” so called, shows that she did not and had not succeeded to said claim or cause of action. In the original complaint, verified by said Fred N. Hallett, he alleges, inter alia, that he was the agent of defendant for leasing certain land and collecting rent therefor; that he had paid out as such agent, at the instance and request of defendant, the sum of $1,080.22, no part of which had been repaid except the sum of $480.80, leaving a balance due of $599.42. In the so-called “amended complaint” which was filed on motion of said Hallett it is alleged that M. E. Hallett was the duly appointed agent of defendant for the purpose of leasing said land and collecting the rent, and that by reason of such agency she advanced to the defendant, at his special instance and request, the sum of $1,055.22, and no part of wbicb bad been repaid except tbe sum of $480.80, leaving a balance due of $574.42. It will be observed from tbe foregoing tbat tbe original complaint was for money advanced by Fred N. Hallett as agent of defendant, while tbe amended complaint was for money advanced by M. E. Hallett as agent of defendant. Fred N. Hallett alleged in tbe original complaint that be bad advanced $1,080.22, while M. E. Hallett alleged in the amended complaint tbat she bad advanced $1,-055.22 to defendant, at his instance and request. It will also be observed that M. E. Hallett was substituted as the sole plaintiff, not to prosecute the same cause of action stated in tbe original complaint, on tbe ground tbat she bad succeeded to it, but was permitted to prosecute another and distinct cause of action in her own right. If such amendments as the one under consideration were allowed, it would permit a substituted plaintiff to prosecute a new suit, for another and distinct cause of action, by merely filing a new complaint (not an amended one) stating another and distinct cause of action. Amendments should be very liberally allowed, under the provisions of section 4229 of the Eevised Statutes, but it was not intended that such an amendment and substitution as that in the case at bar should be allowed. (Dubbers v. Goux, 51 Cal. 153.)

It may be urged that the evidence shows that the same cause of action is stated in both complaints, and for that reason no new cause of action was stated. For the purpose of disposing of this alleged error, we are not authorized to go into the evidence taken on the trial of the case. And, if we were permitted to do so, the evidence shows that the substituted plaintiff was the real and only plaintiff in interest at the commencement of the suit. Under the very liberal provisions of our statute, a court should not permit a person to be substituted as plaintiff in the place of the plaintiff who brought the suit, when the person substituted was the real and only party in interest at the commencement of the action. (Dubbers v. Goux, 51 Cal. 153.)

In the preparation of the transcript the appellant has ignored the provisions of paragraph 3, rule 27, of this court. The title of the court and cause in the court below is inserted in many places, and other matters are inserted, contrary to the provisions of said paragraph. And as stated in Thiessen v. Riggs (decided at this term), ante, p. 487, 51 Pac. 107; “We know of no better way of enforcing the rule relating to transcripts than to require the appellant, although successful, to pay the costs of obtaining and printing the transcript, or such part thereof as would be equitable, when he disobeys the rules, and inserts matter in the transcript which should not be there.” The conclusion is that the judgment of the court below must be reversed, and the cause remanded, with instructions to the lower court to set aside said judgment and the order permitting the amended complaint to be filed; and it is so ordered. The costs of this appeal, except one-half of the costs of the transcript, are awarded to appellant.

Huston and Quarles, JJ., concur.