Leonard v. Parker ( 1872 )

The opinion of the court was delivered, by

Thompson, C. J.

— The plaintiffs commenced an action of ejectment for the land mentioned in the writ, on the 27th of January 1865, against Fullerton Parker, George Parker, William Morrison and Michael Connelly, and there was an appearance for the last three on the 10th of February 1865. On the 6th of March following, the plaintiffs’ counsel discovering that he had omitted the name of James W. Parker, whom he intended to embrace in the writ as a defendant, in transcribing his precipe, applied to the court for leave to amend under the Act of Assembly of the 4th May 1852, by adding his name. The court being satisfied of a mistake granted leave, and the name was added. On the 27th of the same month defendants’ counsel ruled the plaintiffs to file an abstract of title, which was accordingly done on the 12th June 1865. Thus the case stood, with the exception of the introduction of the heirs of M. Connelly, who had become deceased, until the 26th November 1869, when, on motion of defendants’ counsel, a rule was granted upon the plaintiffs to show cause why the amendment allowed in adding the name of James W. Parker should not be revoked, and his name stricken from the record as a defendant. This rule was afterwards, on the 12th of July 1872, made absolute.

The plaintiffs took testimony to show that the amendment was allowed to correct a mistake and supply an omission. This was clearly shown, but was a work of supererogation, as the act of the court was presumably upon cause shown, and within the Act of Assembly. There was no testimony on the part of Parker to show that it had been improvidently made. Indeed it is questionable whether, had there been, it could have been made to appear here. . But it is alleged that the amendment was made without notice to Parker. It seems to me that this was not essential at this point. The action of the court was only with the view to correct the omission of a name necessary to a full trial of the cause on the merits — to have all proper parties on the record. Had the rule to show cause been served on Parker, and he had offered to resist the amendment, it would have most likely had the effect of making him a party without any process or rule to bring him in. I cannot see how he could have prevented the amendment if he had had notice, unless by satisfying the court of what is not pretended here, that he was an entire stranger to the land in controversy. The Act of Assembly says that the “ courts shall have power in any stage of the proceedings (in actions) to permit amendments by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party.” It has been often done. See authorities cited by plaintiffs’ counsel. The only question in such an application is whether an omission or mistake has occurred, and of course this inquiry would necessarily extend to the ascertainment of the fact whether the name proposed to be added appeared to have a connection with the subject of the suit. If so, and omitted by mistake, then the amendment would be proper, and no considerations of superior right or title to the thing in controversy in the party can prevent it. That is the fact to be tried when the party is on record. When the name is added, if without previous notice or appearance to the rule, of course the party must be brought into court by an alias summons, or perhaps by a rule to appear and plead. This done, the party added is thenceforth a party to the record, and his rights are to be affected from the time he is thus fully in court, as in cases of parties originally summoned.

James W. Parker having boen regularly introduced as a party defendant, we cannot see any good ground in anything alleged in argument for striking him out. His own affidavit, undoubtedly looked at in the court below, shows a good reason for making him a party. He claims in it the entire property in controversy, and that he is in possession of it. But that is, strictly speaking, not before us, and the defendant can claim no support from it here. We have then nothing to justify the court in striking out the defendant’s name at his own instigation, and against the opposition of the plaintiff who had it added on the ground of omission by mistake. The idea was suggested on argument, that if the name be not stricken out the defendant will be deprived of the effect of the running of the Statute of Limitations in his favor. A consideration of that kind would not do as a ground for striking out the amendment, for peradventure the plaintiffs might be able to show an entry that would toll the statute, or an acknowledgment of title within the bar of the statute or the like. At least they ought to have an opportunity to do so if they can. All such considerations were out of place on this motion: they are necessarily reserved for the subsequent action of the court and jury.

Seeing nothing to justify the court helow in striking out the name of James W. Parker as defendant in this case, the order for the same is reversed, and it is ordered that the name be reinserted, and the record is remitted for that purpose, and that the case be proceeded in as the case stood before the name of James W. Parker, defendant, was stricken out.