Gilmore v. Jacobs

By the Court, E. Darwin Smith, J.

The defendant had a separate estate, and her husband was without means or credit, and there is considerable evidence and, I think, a decided balance in the weight of testimony tending to show that she contracted the debt for the wood in question, and that the same was sold to her, and on the credit of her separate estate ; and the jury having in effect so found by their verdict, it cannot be disturbed on the ground that it was unwarranted by the evidence. On the merits, the verdict, I think, is clearly right. The only question in respect to the correctness of the judgment is whether the plaintiff was entitled to declare at the trial against Mr. Jacobs alone; the summons for the commencement of the action having been sued out against and served upon her and her husband Bussell Jacobs. The justice does not appear to have made any formal decision upon the question of allowing the plaintiff to proceed against one defendant alone, but I think he must be deemed to have allowed an amendment of the summons for that purpose, if he had any powers to do so, because he did allow the plaintiff to declare against Mrs. Jacobs singly, notwithstanding the objection of misjoinder with her husband was made at the time, and afterwards at the trial, and proceeded to try the cause as though she were sued alonq as a single defendant, and rendered judgment against her as a sole defendant. A justice’s court being a court of special and limited jurisdiction, has no powers except those expressly conferred upon it by statute.

[Monroe General Term, March 4, 1867.

The general power of amendment given to courts of record in §§ 172 and 173 of the Code, does not belong to justices’ courts, nor do any of the general provisions in relation to the amendment of process and pleadings, contained in other parts "of the Code and in the" Revised Statutes, apply to justices’ courts. ( Webster v. Hopkins, 11 How. Pr. R. 140. Perkins v. Richmond, 17 id. 312. Gates v. Ward, 17 Barb, 424.) In this'court a plaintiff could not amend his summons, so as to leave out the name of one of the .defendants, before the Code, and cannot now, without leave of the court. (Russ v. Spear, 3 Code Rep. 189. 1 Code Rep. 157 N. S. and Dibble v. Mason, 1 id. 37.) The name of Jacobs could not therefore be dropped in the proceedings before the justice without leave of the court, and as it was done, leave must be considered as granted. The question is, then, had the justice any power to grant such an amendment ? I cannot find that the justice has any such power. . It is not expressly given to justices of the peace, in any provisions of the justices’ act, and therefore justices’ courts cannot possess or exercise any such power. The case of Gates v. Ward, and Webster v. Hopkins, deny such right. These are both general term decisions of this court, and we feel bound to follow them. We must therefore hold that the justice had no right to strike out the name of Russell Jacobs from the summons and sever in the action after summons served upon both the defendants; and the judgment for this reason should be reversed.

Welles, E. Darwin Smith and Johnson, Justices.]