Price v. Goodrich , 1908 Ill. App. LEXIS 721 ( 1908 )

Mr. Presiding Justice Baker

delivered the opinion of the court.

We think that section 24 of our Practice Act gave to the Circuit Court power to permit the pleadings and proceedings to be amended after verdict and pending the motion for a new trial, by adding the name of Carpenter as plaintiff; and that the court on the evidence in this case properly exercised such power by making such amendment. Cogshall v. Beesley, 76 Ill. 445; Tomlinson v. Earnshaw, 112 id. 311; Fenton v. Lord, 128 Mass. 466. Such amendment did not introduce a new cause of action, and the demurrer to the plea of the Statute of Limitations was therefore properly sustained. McCall v. Lee, 120 Ill. 261. The distinction between adding a plaintiff and adding a defendant is obvious. As to the new defendant, the suit is begun when he is made defendant. The cases cited for appellant are all cases in which a new defendant was added after the statute had run.

If the defendant had any claim or demand against the plaintiffs which could form the basis of a recoupment or set-off against both plaintiffs, but not against plaintiff Price alone, she should have shown such facts by affidavit in support of her motion for a new trial, and in the absence of such showing we cannot presume that she had any such claim or demand.

We think the record is free from reversible error,; and the judgment of the Circuit Court will be affirmed.

Judgment affirmed.