Flanders v. Lyon
| Decision Date | 17 March 1897 |
| Citation | 51 Neb. 102,70 N.W. 524 |
| Parties | FLANDERS v. LYON & HEALEY ET AL. |
| Court | Nebraska Supreme Court |
In a replevin suit, where the plaintiff has taken the property, it is error to permit a stranger to be substituted for the original plaintiff, over defendant's objection.
Error to district court, Douglas county; Blair, Judge.
Action by Lyon & Healey against Mrs. J. B. Flanders. Patrick J. Healey was substituted as plaintiff. Judgment for plaintiff, and defendant brings error. Reversed.E. R. Duffie, for plaintiff in error.
D. L. Johnson, for defendants in error.
Lyon & Healey, a corporation, brought this action in replevin before a justice of the peace for a piano, piano stool, and cover, claiming the same under a chattel mortgage. The plaintiff gave bond, and the property was delivered to it under the writ. Subsequently a motion was filed by Lyon & Healey for leave to substitute P. J. Healey as plaintiff, “for the reason that the note and mortgage on which this action is based have been assigned to said P. J. Healey, who now owns the same.” A motion was also filed by P. J. Healey, asking, on his part, that he be made plaintiff, instead of Lyon & Healey. These motions were sustained over the objection and exception of the defendant, and Healey substituted for the corporation of Lyon & Healey, as plaintiff. The defendant made no further defense, and judgment was rendered for the plaintiff. Defendant took error to the district court, assigning as error the substitution of Healey for the corporation. The district court affirmed the judgment of the justice, and the defendant seeks by these proceedings to reverse the judgment of affirmance rendered by the district court.
On the one side, it is argued that the substitution was made because it appeared that the note and mortgage never had belonged to Lyon & Healey, but to P. J. Healey; on the other, it is assumed that there had been a transfer of interest after the institution of the suit. Certain depositions appear in the transcript as filed in the district court, but there was not, and could not at that time have been, any bill of exceptions embodying the evidence before the justice on the hearing of the motion. Moline, Milburn & Stoddard Co. v. Curtis, 38 Neb. 520, 57 N. W. 161. We must therefore proceed upon the assumption that the evidence was such as to justify the action of the justice, if such an order be, under any circumstances, proper; and the sole question presented is, therefore, whether, under any circumstances, a court may properly, against the objection of the defendant, substitute a new party for the plaintiff in an action of replevin, where the property has been delivered to the plaintiff under the writ. Section 144 of the Code of Civil Procedure provides: “The court may either before or after judgment in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party. * * *” Under similar provisions, it has generally been held that the object of this provision is to cure misjoinders or nonjoinders and mistakes in the names of parties, and that it does not permit a sole party plaintiff to be dismissed, and a new plaintiff substituted. To permit this would be to create a cause of action, perhaps, in the new plaintiff, where none existed in the original plaintiff when the suit was begun. Davis v. Mayor, etc., 14 N. Y. 506; Leaird v. Moore, 27 Ala. 326; Dubbers v. Goux, 51 Cal. 153; Gresham v. Webb, 29 Ga. 320. There are some cases stating a differentrule, but, under this, the substitution of parties is held not to be a matter of right, but a power, to be exercised in the discretion of the court; and it is clear that it should not be exercised where it would operate to the prejudice of the adverse party. Strickland v. Bridges, 21 S. C. 21;Hubler v. Pullen, 9 Ind. 273; Hanlin v. Baxter, 20 Kan. 134. What it was sought to do in this case was not merely to correct a mistake, whereby the proper plaintiff had been improperly designated, or...
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