Elmore v. Vallette ( 1863 )

Leonard, J.

Yallette demurred among other things for defect of parties defendant.

When that demurrer was sustained, with leave to the plaintiff to amend his complaint by adding new parties-defendant on payment of costs, the decision embraced the right to make the amendment effectual in all the proceedings of the action.

The order seems to be defectively framed in providing only for an amendment of the complaint.

The leave was intended to be to amend the whole action by adding defendants.

The present motion is for judgment for want of an answer. It is resisted by Yallette because there has been no amendment of the summons. The new parties have been brought in without an express order touching the summons.

Yallette has not answered this amended complaint, his attorney having returned it, when served on him, for the reason just • mentioned.

I think Yallette was bound to answer; but the question is not free from doubt.

The plaintiff may take an order to show cause, &c., by a short day, why the order on deciding the demurrer should not be resettled.

The motion for judgment will be denied without costs, and without prejudice to the right to renew this motion for judgment.