Fargo & Company v. Cutshaw
| Decision Date | 29 January 1895 |
| Docket Number | 1,430 |
| Citation | 39 N.E. 532,12 Ind.App. 392 |
| Court | Indiana Appellate Court |
| Parties | FARGO & COMPANY v. CUTSHAW ET AL |
Petition for a rehearing overruled April 9, 1895.
From the Washington Circuit Court.
Judgment reversed.
D. M Alspaugh and J. C. Lawler, for appellants.
H Morris, J. A. Zaring and M. B. Hottel, for appellees.
Charles H. Fargo, Charles E. Fargo, Samuel M. Fargo and Frank M. Fargo sued the appellees in the court below on an account for goods alleged to have been sold and delivered by them to the appellees and recovered a judgment. Upon the trial the evidence disclosed that the appellees purchased the goods not of the Fargos, as a firm, but of C. H. Fargo & Co., a corporation, although it also appeared that said Fargos above named were the sole stockholders and incorporators in said corporation. On appeal to this court the judgment was reversed, the court holding that the trial court should have sustained the motion for a new trial, owing to the fact that the evidence showed that said Fargos, as individuals, had no cause of action against the appellees. Cutshaw v. Fargo, 8 Ind.App. 691, 34 N.E. 376.
Proceedings in attachment had also been instituted with the original suit in the names of said Fargos as individual plaintiffs, and these proceedings were sustained and the property attached was ordered sold. When the cause again reached the trial court there was a change of judge, and at the February term, 1894, the plaintiff filed a motion and asked leave of court to file an amended complaint. To this motion the defendants (the appellees) objected, but it was overruled and they excepted, and the amendment was allowed.
Thereupon the defendants below filed their motion to dismiss the attachment proceedings, when the plaintiff moved the court for leave to amend the proceedings in attachment "by substituting the name of the plaintiff for that of Charles H. Fargo" and those of the other original plaintiffs. The court having had the matter under advisement, overruled the motion for leave to amend the affidavit and proceedings in attachment, and the appellant excepted.
The court then, of its own motion, set aside its previous order granting leave to the appellant to amend the complaint by substituting the name of the corporation for that of the Fargos individually, and the appellant excepted to this ruling. The court thereupon overruled the appellant's motion for leave to amend the complaint, and the appellant duly excepted.
The errors assigned are:
1. The setting aside by the court, of its own motion, of its order previously made granting leave to amend the complaint.
2. The overruling of the appellant's motion for leave to amend its complaint and refusing to allow such amendment.
3. The overruling of the appellants' motion for leave to amend the affidavit and proceedings in attachment.
We think the first and second assignments of error are well taken. We are aware that the granting or refusal of leave to amend a pleading is largely within the sound discretion of the court, but when the justice of the case so clearly requires that leave should be granted, as it does here, we think it is the duty of the court on appeal to so direct. Chicago, etc., R. W. Co. v. Jones, 103 Ind. 386, 6 N.E. 8.
We think it sufficiently appears that the appellant corporation was the party asking for the leave to be substituted. As we have seen, the original plaintiffs are also the incorporators and stockholders of the appellant corporation. They therefore had full control over the pending action, and could act both for the corporation and themselves as former plaintiffs. We do not see how the appellees could in any manner have been injured in their rights by the leave to amend. The amendment does not render the appellees liable to the appellant if they were not already so. If they owe to the appellant a debt, they should pay it, and if not, they can interpose their defense, whatever it be.
Our statute is very liberal on the subject of amendments of pleadings. R. S. 1894, sections 397, 399 (R. S. 1881, sections 394, 396).
The facts upon which the petition for leave to amend was predicated were not controverted. From these it clearly appeared that the use of the individual names of the incorporators was brought about by a mistake of the facts concerning the incorporation. The decided cases fully support the conclusion that the appellant was entitled to the amendment. Hubler v. Pullen, 9 Ind. 273; Abshire v. Mather, 27 Ind. 381; Evansville, etc., R. R. Co. v. Lawrence, 29 Ind. 622; Ferguson v. Ramsey, 41 Ind. 511; Clough v. Thomas, 53 Ind. 24; Miller v. Royce, Admr., 60 Ind. 189; Burk v. Andis, 98 Ind. 59; Chicago, etc., R. W. Co. v. Jones, supra.
The question whether or not the appellant was entitled to an amendment of the affidavit and proceedings in attachment, is a more serious one. It is true the attachment proceedings are but an incident to the main action, and the two generally go hand in hand. But before there can be any attachment, there must be a valid affidavit, such as the statute prescribes and it must somewhere, either in the caption or body, contain the names of...
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