Rodríguez v. Porto Rico Motor Co.

HamiltoN, Judge,

delivered tbe following opinion:

A motion is made by tbe plaintiff that a summons issue to one Patterson as a defendant in this suit, tbe application being made under § 63 of tbe Code of Civil Procedure of Porto Rico. Tbe reason for this application is that tbe answer sets up the automobile causing tbe accident was at tbe time in tbe custody and control of tbe said Patterson under a contract of hire. Tbe plaintiff wishes to bring him in this manner without filing an additional suit.

1. No leave to amend tbe complaint is asked, and, if tbe party in question was made a defendant, it is difficult to see what could be done with him. Tbe plaintiff says that be will then amend bis complaint to fit tbe case, but, as it stands, no amendment has been made or applied for, and if Patterson is now brought in as a defendant, it would be necessary, if be made tbe motion, to strike him out again.

2. It is argued thát § 63 must have some scope other than the practice which permits tbe plaintiff to amend and bring in other parties. This is no doubt true, but tbe court cannot bring into a suit a party wbo is not shown by the plaintiffs' pleadings to be a proper party to the matter in suit. The court cannot institute a judicial proceeding except in the matter of contempt, or by way of direction to a receiver in equity. A suit must be brought by one party filing a complaint against another party, and only when this is done does the power of the court come into being to mold that proceeding so as to insure full justice. If a complaint is so filed and shows that someone not made a party should be brought in, it is probable that the court under this section or under its general powers might direct the plaintiff to make such person a party. But the court cannot on the one hand amend the complaint, or on the other bring in a party not shown by the complaint to be necessary.

3. What is said above as to the complaint is also true sub modo as to the answer. The court, upon motion of the defendant, will in some cases bring in warrantors, as in the ease of landlord or a predecessor in the title. But this also will be done only where the answer takes the place of a complaint pro tanto and shows that the defendant has a right to bring in other' parties in order that justice may be done in the whole transaction.

4. In the application at bar the argument seems to show the plaintiff alleges a claim which is good against the defendant or against Patterson, depending on how the facts may develop, but not against the defendant and Patterson, unless the facts are different from what was stated on the argument. If that be the case, it is questionable whether Patterson could be joined at all. At all events, the complaint must be amended so as to show that Patterson has some connection with the case before he can be made a party at the instance of the plaintiff.

The motion therefore is denied.