Clapp v. Jordan

• Decision Date: 31 December 1849
• Citation: 5 Tex. 130
• Parties: AUSTIN & CLAPP v. JORDAN.
• Court: Texas Supreme Court

5 Tex. 130

AUSTIN & CLAPP

v.JORDAN.

Supreme Court of Texas.

December Term, 1849.

The power to grant leave to amend when not forbidden by law is a discretionary power, the exercise of which will not in general be revised by an appellate court.

Mere clerical errors, such as testing a writ on a Sunday when it was in fact issued on Saturday, are amendable at any time. (Note 18.)

In every case where a defendant need not have been joined, or where it may be desirable to dismiss one of several defendants, and the liability of the defendants is such that an action can be maintained against the others without joining him, the plaintiff may enter a nolle prosequi as to him, and have judgment against the other defendants. (Note 19.)

In matters of practice where there is no statute courts have authority to establish the rule by their decisions.

Where the plaintiff declares for a sum within the jurisdiction of the court and there is no plea to the jurisdiction, the court may adjudicate the subject-matter and give judgment for a less sum than the amount required to give jurisdiction, unless the plaintiff in stating his demand improperly sought to give jurisdiction where it did not rightfully belong. (Note 20.)

Appeal from Sabine. The appellee sued the appellants and Travis G. Broocks to recover damages for the loss and injury alleged to have been sustained by him in consequence of the carelessness and negligence of the appellants in the transportation of cotton of which they, as common carriers, had undertaken the transportation for the plaintiff. The plaintiff claimed one thousand dollars damages. The filing of the petition and the writ bore date on the 29th day of November, 1846. At the Spring Term, 1847, the defendant Clapp, appeared and pleaded in abatement that the petition was filed and the writ issued on Sunday, the 29th day of November, 1846, contrary to the statute, &c. At the same time the defendants Austin and Clapp answered by exceptions to the petition and a general demurrer, and the defendant Broocks filed a separate answer. At the Spring Term, 1849, the plaintiff replied to the plea in abatement, alleging that the petition was in fact filed and the citation issued on Saturday, the 28th day of November, 1846, and not on Sunday, the 29th of that month, as by the mistake of the clerk the same bore date. He at the same time moved the court to permit the clerk to correct the mistake in the dates, and in support of this motion filed an affidavit of the clerk stating that the petition was by him filed and the writ issued on Saturday, the 28th day of November, 1846. The defendants Austin and Clapp amended their answer, pleaded a set-off, and excepted to the petition, assigning as causes the improper joinder of Broocks with themselves as defendants, and the absence of any liability on the part of the defendant Broocks. The court permitted the clerk to amend by changing the date of the citation and of the filing of the petition from the 29th to the 28th of November, according to the fact as stated in his affidavit. After the parties had announced themselves ready for trial, (which the court required them to do before disposing of the exception,) and after argument of the exceptions, the plaintiff was permitted to enter a nolle prosequi as to the defendant Broocks; whereupon the defendants Austin and Clapp moved to dismiss the case. This motion and the exceptions to the petition were overruled by the court. The jury returned a verdict for the plaintiffs for ninety-six dollars. The defendants thereupon moved the court to strike the case from the docket for the want of jurisdiction; which motion being overruled, they moved for a new trial. This motion was also overruled and the defendants appealed.

J. P. Henderson, for appellants.

I. The court erred in permitting the clerk to alter the record. It would be a dangerous practice to establish to allow a careless clerk, upon his bare recollection, without anything to amend by, inclined as he would be to excuse himself, upon his own affidavit alone, and not even alleging in that that the wrong date was given by mistake, to come into court nearly two years and a half after the occurrence and change the date of a record, making that binding and valid which was before a nullity. It would be much wiser and safer to leave the party injured to seek his relief against the careless clerk and his sureties.

The plea in abatement put in issue a fact which ought to have been tried by a jury. (Bacon v. Parker, 2 Tenn. R., 57.)

II. The court should have refused to allow the plaintiff to amend his petition by discontinuing as to Broocks after the parties had announced themselves ready for trial. (Acts of 1846, p. 379, sec. 45; Id., p. 371, sec. 34.) The parties had announced themselves ready for trial generally; ready for the trial of facts as well as of law. Such is the requirement of the judge who sat upon this case in the court below, in all cases, as will be seen from his statement in the bill of exceptions.

III. The court ought to have dismissed plaintiff's petition after it was dismissed as to defendant Broocks. The finding of the jury shows that the suit ought to have been brought before a justice of the peace.

Jennings and Ardrey, for appellee. It is thought that the only point intended to be presented to the consideration of the court is the question of the jurisdiction of the District Court to render judgment in a case where the verdict of the jury was for an amount less than one hundred dollars. (Brown & Tarbox v. Kennon, 3 Tex. R., 7; Wills v. Couchman, 4 J. J. Marsh, R., 242.) Upon the subject of amendment after announcement of readiness for trial, we respectfully cite the case of Jennings v. Moss, decided at this term.

LIPSCOMB, J., did not sit in this case.

WHEELER, J.

The grounds relied on for a reversal of the judgment relate to the ruling of the court:

1st. In permitting the clerk to amend by changing the date of the writ and of the filing of the petition.

2d. In permitting the plaintiff to enter a nolle prosequi as to the defendant Broocks, and proceed to judgment against the other defendants.

3d. In refusing to dismiss the case for the want of jurisdiction.

1. The power to grant amendments, when not forbidden by law, is a discretionary power in the court the exercise of which an appellate court will not, in general revise. (5 Cr. R., 15; 9 Wheat. R., 576; 3 Pet. R., 12; 1 Binn. R., 359;5 Whart. R., 67; 3 How. Miss. R., 105; 2 Scam. R., 375; 12 N. Hamp. R., 493; 5 Ired. R., 9; Cartwright v. Chabert, 3 Tex. R., 261.) Amendments are almost universally allowed where they do not surprise, hinder, or delay the opposite party. (3 Hill S. C. R., 195.) Such, it is conceived, is the amendment in question. There can be no pretense to say that it operated as a surprise, hinderance, or delay to the defendants. It was, we think, of the class of mere clerical errors which we have heretofore held are amendable at any time. (Burdett et al. v. Marshall, 3 Tex. R., 24.)

Nor are precedents wanting of cases in which amendments of the precise character of the present have been allowed. In the case of Bragg v. Greenleaf (2 Shep. R., 95) an amendment of a writ by altering the date to a subsequent day was allowed on affidavit that it was actually made on such subsequent day, where it appeared from the date that the writ was made before the cause of action accrued. In Harness v. McCormick (5 Pike R., 663) it was held that the date of a writ may be amended. The teste of a writ, it is held, is mere matter of form, and is amendable. (3 Shep. R., 431.)

There was, we think, no error in permitting the amendment in question.

2. Did the court err in proceeding to judgment after the nolle prosequi as to the defendant Broocks?

It is said by Mr. Chitty (1 Chit. Pl., 50) that “at law as well as in equity the courts will not take cognizance of the distinct and separate claims or liabilities of different persons in one suit, though standing in the same relative situations. And therefore, in actions ex contractu against several, it must appear on the pleadings that their contract was joint, and that fact must also be proved on trial. If too many persons be made defendants and the objection appear on the pleadings, either of the defendants may demur, move in arrest of judgment, or support a writ of error. And even if the objection do not appear upon the pleadings, the plaintiff may be nonsuited upon the trial if he fail in proving a joint contract; * * * and though a contract be proved to have been in fact made by all the defendants, yet if in point of law it was not obligatory upon one of the defendants, either on the ground of infancy or coverture at the time it was entered into, the plaintiff will be nonsuited; and in this instance he cannot avoid the objection by entering a nolle prosequi as to the infant or feme covert, but must discontinue and commence a fresh action omitting such parties.”

The accuracy of these general rules, as deducible from the English decisions, may be admitted; but they are to be understood, it is conceived, with certain qualifications, and they have not been considered, especially by the American courts, binding as matter of principle, but rather as matter of practice to be governed by considerations of convenience and policy.

In the case of Minor et al. v. The Mechanics' Bank of Alexandria (1 Pet. R., 46) the authorities upon this subject, both English and American, are reviewed in an elaborate opinion by Mr. Justice Story; and various qualifications of the rule as stated in the text of Mr. Chitty, above cited, are shown to exist even in the English decisions; as where the defendants sever in their pleas and one defendant pleads some plea which goes only to his personal...