Hallett v. Larcom

Decision Date12 November 1897
PartiesHALLETT v. LARCOM
CourtIdaho Supreme Court

PLEADINGS-AMENDMENTS-NEW CAUSE OF ACTION-SECTION 4229 OF THE REVISED STATUTES CONSTRUED.-Under the provisions of section 4229 of the Revised Statutes, it is error to permit a new plaintiff and new cause of action to be substituted under the guise of an amendment to the original complaint.

SUBSTITUTION OF PLAINTIFF-REAL PARTY IN INTEREST.-A new plaintiff cannot be substituted in place of the plaintiff, who brings the action, where the party sought to be substituted was the real party in interest at the commencement of the action.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Reversed and remanded, with instructions.

James W. Reid, for Appellant.

The action was originally brought by Fred N. Hallett as plaintiff in his own name, for money alleged to have been advanced by himself. The defendant answered, denying all the allegations of this first complaint. On the 26th of November, 1895 plaintiff Fred N. Hallett filed a motion that he be allowed to file an amended complaint, making M. E. Hallett plaintiff instead of himself, which the court allowed and the defendant assigns error thereon. No showing whatever was made to justify the dropping of Fred N. Hallett, who had brought the action, and the substituting of M. E. Hallett as plaintiff in his stead. No affidavits were filed in support of the motion. The complaint on file was for money advanced by Fred N. Hallett. A new complaint, to recover for money advanced by M. E. Hallett, was substituted. The appellant is still subject to an action for any money advanced by Fred N Hallett. The termination of this suit will not adjudicate any rights existing between Fred N. Hallett and the appellant. The allowance of the filing of a new complaint, changing the cause of action was an error. It was certainly error to allow the substitution of a new plaintiff. The following cases, most of them decided under statutes containing the same provision found in the code of this state, are decisive upon that point: Dubbers v. Goux, 51 Cal. 153; Leaird v. Moore, 27 Ala. 326; Tarver v. Smith, 38 Ala. 135; Taylor v. Taylor, 43 Ala. 650; Crescent Furniture Co. v. Raddatz, 28 Mo.App. 210; Marsh River Lodge v. Brooks, 61 Me. 585.

Burleigh & Green, for Respondent.

In reply to appellant's first assignment of error "that the court erred in allowing plaintiff to file an amended complaint substituting M. E. Hallett instead of himself," the second amended complaint shows upon its face to be for the identical claim originally sued on, the same amount, the same allegations, the same parties, except change of plaintiff; hence there is no change of cause of action as to changing or substituting one plaintiff to another. We cite: Wells v. Stomback, 59 Iowa 376, 13 N.W. 339; Harper v. Hendricks, 49 Kan. 718, 31 P. 734; Cockrill v. Clyma, 98 Cal. 123, 32 P. 888; Hestres v. Brennan, 37 Cal. 385.

SULLIVAN, C. J. Huston and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was originally brought by Fred N. Hallett, as plaintiff, against the defendant, R. E. Larcom, for the recovery of $ 599.42, money alleged to have been advanced for the defendant, at his special instance and request, while said Hallett was acting as the agent for the defendant in leasing and taking care of certain lands belonging to defendant, situated in Nez Perces county, and collecting rent therefor. The defendant answered, denying all of the allegations of said complaint. Thereafter said Hallett, by motion, asked the court to be permitted to file an amended complaint, whereby M. E. Hallett should be made plaintiff in said action, which motion was granted by the court, regardless of defendant's objection thereto. Thereafter defendant answered, denying all of the allegations of the amended complaint. The cause was tried by the court with a jury, and verdict and judgment were in favor of the plaintiff for the full amount claimed. A motion for a new trial was made by appellant, and denied by the court. This appeal is from the judgment and from the order denying the motion for a new trial.

Forty-three alleged errors are assigned. But, in our view of the case, it is only necessary to dispose of the first, which is, the court erred in allowing Fred N. Hallett to file an amended complaint whereby M. E. Hallett was made plaintiff in his stead. No showing was made for the substitution of M. E Hallett as plaintiff in place of Fred N. Hallett. It was not shown that she (M. E. Hallett) had succeeded to the claim of Fred N. Hallett as set forth in the original complaint as a cause of action. The "amended complaint," so called, shows that she did not and had not succeeded to said claim or cause of action. In the original complaint, verified by said Fred N. Hallett, he alleges, inter alia, that he was the agent of defendant for leasing certain land and collecting rent therefor; that he had paid out as such agent, at the instance and request of defendant, the sum of $ 1,080.22, no part of which had been repaid except the sum of $ 480.80, leaving a balance due of $ 599.42. In the so-called "amended complaint" which...

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9 cases
  • Panhandle Lumber Co. v. Rancour
    • United States
    • Idaho Supreme Court
    • September 20, 1913
    ...motion to strike the amended complaint of plaintiff. (31 Cyc. 409; Anderson v. Groesbeck, 26 Colo. 3, 55 P. 1086; Hallett v. Larcom, 5 Idaho 492, 51 P. 108; Thompson v. Beeler, 69 Kan. 462, 77 P. 100; McLain & Daniel v. Americus Oil Co., 117 Ga. 881, 45 S.E. 268; Venable v. Burton, 118 Ga. ......
  • Mole v. Payne
    • United States
    • Idaho Supreme Court
    • May 29, 1924
    ...discretion in refusing to permit the amendment may not be questioned. (The Mode, Ltd., v. Myers, 30 Idaho 159, 164 P. 91; Hallett v. Larcom, 5 Idaho 492, 51 P. 108; Fralick v. Mercer, 27 Idaho 360, 148 P. Harrison v. Russell & Co., 17 Idaho 196, 105 P. 48.) MCCARTHY, C. J. Budge, William A.......
  • Rogers v. Mellon
    • United States
    • Idaho Supreme Court
    • January 25, 1927
    ...and J. H. McEvers, for Appellant. Amendments making a complete substitution of parties plaintiff cannot be allowed. (Hallet v. Larcom, 5 Idaho 492, 51 P. 108; Vermont Loan & Trust Co. v. McGregor, 5 Idaho 51 P. 104; Dubbers v. Goux, 51 Cal. 153; James v. Davis, 209 Ala. 87, 95 So. 346; Clem......
  • Chemung Mining Co. v. Hanley
    • United States
    • Idaho Supreme Court
    • May 4, 1904
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