Chouteau v. Hewitt

• Court: United States State Supreme Court of Missouri
• Citation: 10 Mo. 131
• Parties: HENRY CHOUTEAU ET AL. v. JAMES HEWITT ET AL.
• Decision Date: 31 March 1846

10 Mo. 131

HENRY CHOUTEAU ET AL.

v.JAMES HEWITT ET AL.

Supreme Court of Missouri.

March Term, 1846.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

SPALDING, for Appellants. 1. The court erred in permitting the plaintiffs below to amend the declaration by the alteration of the names of some of the plaintiffs, and by the insertion of others; and especially at so late a period as after it had been called for trial. As the suit was originally brought, there were twenty-seven plaintiffs named in the declaration and writ. As amended, the declaration contained thirty-one names of plaintiffs. Rev. Code, p. 467, § 1, authorizes amendment of any process, pleading, or proceeding in any action; but does not authorize the changing the action; making new parties is a change of the action, not an amendment of any process, pleading or proceeding in it. 2 Tidd, 753, 756, 758; Graham's Pr. 521, 530; 8 Cowen, 122.2. It is not like amendments in cases of misnomer, for then the proper persons are parties, and remain parties after the amendment, the name only being changed; but here four new plaintiffs are added. 2 Johns. Ca. 336; 1 Chitty, 75-6, as to consequences of not joining all the plaintiffs. 3. The court below ought to have given the instructions asked for by the defendants below, which instructions were based upon variance in the proof from the declaration. 4. The plaintiff's instruction is exceptionable. 5. Mo. R. 230. 5. The court below should have set aside the verdict, and granted a new trial. Graham on New Trials, 483-4; 2 W. Blacks. 955; 5 Mo. R. 248, 323, as to filing reasons for new trial, and affidavits after the four days; as to cumulative evidence, and what it is, Graham's New Trials, 493; 6 Pick. 114, 417; 4 Wend. 579. Rule as to cumulative evidence relaxed in certain cases, 14 Johns. R. 186; 5 Cowen's R. 207; Graham's New Trials; as to diligence, pp. 473 to 477, where the cases are distinguishable from this.

GAMBLE & BATES, for Appellees. 1. The amendment of the declaration was rightly permitted. Rev. Code, 467, art. 6, §§ 1, 2, 3. In other courts where the statutes are less comprehensive in the language allowing amendments, the decisions are liberal enough to authorize this amendment. 3 Metcalf, 273; Barker v. Burgess, 3 Mass. 208; 2 Brock. C. C. R. 14. Again, this matter of amendment is purely discretionary, and not the subject for which writ of error lies. Again, no bill of exceptions lies to such decision. Rev. Code, 464, § 20, and 2 Tidd, 911. 2. The instructions asked by defendants were rightly refused. The difference between the name Anderson, called master in the declaration, and the person proved to be master, is no variance between the cause of action in the declaration and that in the evidence. 3. The new trial was properly refused. The first set of reasons assigned apply only to the same subject or point as was embraced in the instructions refused, except the reason that the verdict was against law and evidence. The additional reasons are upon the ground of newly-discovered evidence; and the motion so far as it was founded upon those reasons and the affidavits accompanying, was properly overruled. A verdict is entire, and cannot be set aside in part. 2 Tidd's Pr. 941; 3 Salk. 262; Graham's Pr. 517. The depositions proving the fact of injury to have happened on the 15th of May, were on file in the cause years before the trial, and there was most gross negligence in preparing for his defense if he really had one. After such negligence the court will not grant a new trial. 18 Johns. R. 489; 7 Mass. R. 207; 10 Wend. 292; 1 Cowen, 359; 8 Johns. R. 84; 15 Johns. R. 210; 2 Caine's R. 129.

SCOTT, J.

This was an action on the case for a tort, brought by the appellees, against the appellants, owners of the steamboat Little Red, to recover damages caused by the negligence of the officers of the steamboat, by which she struck against a flatboat of the appellees, loaded with salt, and sunk her. The defendants pleaded not guilty. At the trial term, which was a considerable time after the commencement of the action, the plaintiffs applied for leave to amend their declaration on the affidavit of an agent who caused the suit to be brought, stating that he furnished to the attorney of the plaintiffs, the names of the part owners, composing the firm of Hewitt, Ruffner & Co., for the purpose of bringing this suit; that in so doing he omitted the names of four of the partners of said firm; that the partnership was formed on the principles of a joint stock company, each person being interested in proportion to the stock he held; and that sales of interests in the stock of said firm were made by those who were original partners or stockholders to other persons, with which sales the affiant was unacquainted; so that at the time of the accruing of the cause of action in this suit, the persons omitted had become interested as partners. The court thereupon granted leave to amend the declaration by inserting the names of plaintiffs omitted, and by correcting a mistake in the name of one who was already named. To this an exception was taken. On a trial a verdict was rendered for the plaintiffs for $3,465 68. A motion for a new trial was made on the ground that Chouteau, one of the defendants, was mistaken in matters of fact, and thus prevented from making his defense. Affidavits in support of this motion were filed.

It was argued for the appellees that the allowance of the amendment can not be assigned for error, for the reason that a bill of exceptions can not be taken to such an act, it not occurring during the progress of the trial, the words of the act allowing bills of exceptions. It may be questioned whether a bill of...