Fuller v. Miller , 58 Me. 40 ( 1870 )

Appleton, C. J.

At the March term, 1869, of the superior court, B. B. Miller, one of the defendants, was defaulted. It having been held in Fuller v. Miller, 57 Maine, 168, that upon the evidence the action was not maintainable against the defendants jointly; the plaintiff, at the September term, 1870, discontinued their suit by leave of court against B. B. Miller, and at the subsequent October term recovered judgment against John S. Miller for the amount in controversy.

The defendant, B. B. Miller, claims costs to the time when the action was discontinued as to him.

The allowance of costs in suits at common law is regulated by statute.

By R. S., 1857, c. 82, § 95, “ In all actions, the'party prevailing shall recover costs, unless otherwise specially provided.”

There is no special provision otherwise. By c. 82, § 10, all errors and defects for want of form only, or for circumstantial errors or mistakes, which by law are amendable, may be amended on motion by either party on such terms as the court orders.

By the common law, in assumpsit against two or more, the plaintiff could not amend his writ by striking out the name of one of the defendants. Redington v. Farrar, 5 Greenl. 379. But the common law on this subject was changed by Stat. 1835, c. 178, § 4, which was reenacted in the revisions of 1841 and 1857, and is found in c. 82, § 12, in these words: “ When there are two or more defendants, the writ may be amended, by striking out one or more of them, on payments of costs to him to that time.” The court was not authorized to allow the amendment by striking out the defendant’s name, or discontinuing against him at common law. The authority is by statute, and by that it is allowable only on payment of costs to the party whose name is stricken from the writ by a discontinuance. Notwithstanding his default, B. B. Miller was still a party to the suit, and judgment could not be had against the other defendant without striking out his name.

Exceptions sustained.

Kent, Walton, Barrows, and Danforth, JJ., concurred.