Maxcy v. Padfield ( 1839 )

Smith, Justice,

delivered the opinion of the Court:

The assignment of errors questions the regularity and power of the Court to strike out the name of one of the defendants in the action before the justice of the peace. The original summons was the foundation of the action. The plaintiff in that action elected to misjoin parties who upon no legal principles could be joined in the same action,.and the judgment was manifestly erroneous, as well for the misjoinder, as for rendering judgment against McCullough, who had not been served with process. We cannot doubt that the Court had no power to abate the suit as to one of the defendants, at common law, on the plaintiff’s motion, and we do not conceive that the statutes allowing of amendments relative to proceedings, before justices of the peace, confer the power. The effect of the amendment is to change the character of the action, as to parties, and virtually to constitute a new action. This surely could never have been the intention of the legislature, in the several acts allowing amendments in the Circuit Courts, to proceedings had before justices of the peace.

The defendants might avail themselves of this misjoinder, but surely the plaintiff in the action before the justice, could not discontinue his cause as to one of them, and hold the other liable. The cases cited to support the power to thus amend process, we conceive, have no bearing on the point before the Court, and do not countenance the amendment.

The judgment is reversed, as well in regard to the proceedings and judgment before the justice, as in the Circuit Court, with costs.

Judgment reversed.