Jones v. Sutherland

Appleton, C. J.

The writ in this case contained no name of a plaintiff. The counsel for the defendants moved its dismissal for that cause. The plaintiff moved to amend by the insertion of the name of William G. Jones as plaintiff. The amendment was allowed, to which exceptions were alleged.

In Ayer v. Gleason, 60 Maine, 207, the writ contained the name of Ayer as plaintiff, leaving a blank for the name of copartner. It was there held that the writ could not be amended by the insertion of the name of such copartner. Here there is no plaintiff. Neither the statute nor the common law will sanction such an amendment.

The act of 1874, c. 197, presupposes a writ with one or more plaintiffs or defendants and permits the number of either to be increased or diminished, but in no way sanctions an amendment by inserting a plaintiff or defendant where there is none in the writ.

The amendment disallowed, and the writ without a plaintiff, there is no one against whom an execution for costs could issue. Certainly not against J ones, for the defendant has the action dismissed because his name is not in the writ, though he desired its insertion. The writ, therefore, the amendment being disallowed, remains without the name of a plaintiff. No judgment can be rendered which the law will warrant. Tibbetts v. Shaw, 19 Maine, 204.

Exceptions sustained, action dismissed without costs.

Barrows, Virgin, Peters and Libbey, JJ., concurred.