Cardwell v. Kitrell ( 1855 )

McKinney, J.,

delivered the opinion of the Court.

The Court erred in allowing the amendment, making Cardwell a party defendant. The suit was commenced on the 20th November, 1849, against Lips-combe alone. At the March Term, 1853, leave was given the plaintiff to amend, by making Cardwell a defendant, and his name was accordingly inserted in the summons, and a new count was added to the declaration against him. And on the trial, verdict and judgment were rendered against him for $375.00. To reverse this judgment, an appeal in error was prosecuted to this Court.

The 6th section of the act of 1852, ch. 152, has no application to the present case. The entire act is limited to take effect from and after the first day of September, 1852, and the 6th section is restricted, in express terms, to suits brought after the passage of the act. It follows, therefore, that the amendment was wholly unauthorized; that the plaintiff in error was improperly made a party, and that the judgment must be reversed and arrested.

It may not be out of place to remark, in order to avoid confusion, that the 7th section of the act of 1852, regulating the practice of the Supreme Court, is different in its terms, and has been construed to apply to all cases in the Supreme Court, after the statute took effect.

Judgment reversed and arrested.