Mississippi Central Railroad Co. v. Maples

• Decision Date: 06 July 1914
• Citation: 65 So. 644,107 Miss. 720
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI CENTRAL RAILROAD CO. et al. v. MAPLES

65 So. 644

107 Miss. 720

MISSISSIPPI CENTRAL RAILROAD CO. et al. v. MAPLES

Supreme Court of Mississippi

July 6, 1914

March 1914

APPEAL from the circuit court of Lincoln county. HON. D. M. MILLER Judge.

Suit by J. J. Maples against the Mississippi Central Railroad Company, and others. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and cause dismissed.

H. S Buescher, for appellant.

The court erred in permitting an amendment substituting the name of J. J. Maples as plaintiff for that of Mrs. J. J. Maples plaintiff, after the close of all the evidence. During the progress of the trial in the circuit court, the testimony developed that suit had been brought by the wrong party, whereupon, on motion of appellee and over the objection of appellant, the court permitted the substitution of J. J. Maples as plaintiff. This substitution was no doubt permitted by the court under an erroneous interpretation of section 775, chapter 75 of the Code of 1906, reading as follows: The court shall have full power to allow all amendments at any time to be made in any pleading or proceeding of the controversy before verdict, so as to bring the merits of the controversy between the parties fairly to trial, and may allow all errors and mistakes in the name of any party or in the form of the action to be corrected; and the court shall require all such amendments to be made on such terms, as to cost and delay, as may be proper to prevent surprise or undue advantage. Either party may except to the decision of the court allowing or refusing amendments, and the same may be assigned for error.

This statute was enacted "so as to bring the merits of the controversy between the parties fairly to trial." The parties to the original suit in the justice court were Mrs. J. J. Maples, plaintiff, New Orleans Great Northern Railroad, Mississippi Central Railroad and Illinois Central Railroad, defendants. The justice court at no time had jurisdiction over J. J. Maples, the substitute plaintiff. He was a stranger to that court, and we contend that the circuit court had no other jurisdiction than such as the justice court had. Glass v. Moss, 1 Howard (Miss.), 519; Crapo v. Grand Gulf, 9 Smed. (Miss.), 205; Steir v. Sargent, 10 Smed. (Miss.), 154; Schofield v. Penson, 26 Miss. 402; Richardson v. Davis, 59 Miss. 15.

By permitting this substitution, which in no sense can be upheld by this court, it constitutes, as far as this substituted plaintiff is concerned, an annullment of section 702, chapter 20 of the Code of 1906, which provides, among other things, that "the circuit court shall have original jurisdiction in all actions when the principal of the amount in controversy exceeds two hundred dollars." And, also, of section 2723, chapter 73 of the Code of 1906, which provides that "justice of the peace shall have jurisdiction of all actions for the recovery of debts or damages, or personal property where the principal of the debt, the amount of the demand, or the value of the property sought to be recovered shall not exceed two hundred dollars."

By permitting the substituted plaintiff to make his first appearance in the circuit court, as was done in this instance, he was in fact permitted to bring an original suit for one hundred and twenty-five dollars in the circuit court, thus virtually circumventing both of the statutes above referred to.

Section 86, chapter 5 of the Code of 1906, provides, among other things that in case "judgment be rendered for the plaintiff in the original suit for a sum equal to or greater than he recovered before the justice of the peace, ten per centum damages upon the amount thereof shall be included in such judgment." If instead of recovering a judgment for one hundred dollars in the circuit court, the substituted plaintiff had recovered a judgment for one hundred and twenty-five dollars (the amount of the judgment recovered by the original plaintiff in the justice court), would this substituted plaintiff have been entitled to this ten per centum damages?

While our courts have held that section 775, chapter 75 of the Code of 1906, should be liberally interpreted, this appellant can nowhere find any warrant or authority in law permitting a substitution of this character. Numerous cases may be cited where the name of one nominal plaintiff has been substituted for another, or where the form of the action has been changed, or where the holder of the legal title is made nominal plaintiff, but this court has never yet held that an entirely new plaintiff, a stranger to the proceedings in the justice court, between whom and the original plaintiff there was no privity of interest, or who was neither the successor nor the assignee of the original plaintiff, could be properly substituted.

In Armstrong v. Bean, 56 Texas, 492, the supreme court held that the filing of an amended petition substituting an entirely different plaintiff was an irregularity and could have no effect other than the filing of an original petition. In Elliott v. Clark, 18 N.H. 421, the court held that an amendment was inadmissible which introduces a different party as plaintiff. In Fisher v. Pennsylvania Company, 2 Pa. Co. Ct., 245, the court held that a record cannot be amended by striking out the name of the sole defendant and substituting that of another party. The proper practice is to discontinue and bring a new suit.

A complaint cannot be amended by the substitution of entirely new parties as plaintiff. Lubman v. McGraw, 3 Wash. St. 520, 28 P. 1107.

An order substituting one party for another will not be made by an appellate court upon a mere suggestion. There must be proof or an admission by the adverse party of the facts claimed in order to make it proper to substitute a new party. Kemper v. King, 11 Mo.App. 116.

An appeal or writ of error taken in the name of a party after he has by assignment or otherwise lost interest in the subject-matter of litigation, cannot be amended in the appellate court by the substitution of the person upon whom such party's interest has devolved. Weiler v. Long, 13 Pa. Co. Ct. 632.

Amendments should be liberally allowed under the pleading Act of 1850, but they should be made exclusively for the purpose of reaching the merits of the controversy; an amendment therefore will be ill-advised and improper, which being allowed after the evidence is closed, substitutes instead of the plaintiff, the name of the third party who is shown by the proof to have no title to recover the thing demanded by the suit. Show v. Alexander, 23 Miss. 229. Under the statutes of amendment a complete change of parties cannot be allowed. Rarden Merc. Co. v. Whitesand, 145 Ala. 617, 39 So. 576. See Wray v. Johnson, 10 Humphreys (Tenn.) 186.

So where a plaintiff has been permitted to bring in a new plaintiff the name of the original plaintiff cannot subsequently be struck out by amendment. Reynolds v. Cadwell, 80 Ala. 232. See Brooks v. Collier, Ind. Ter. 468. And likewise where a new party defendant has been added, the original defendant cannot be struck out. Rarden Merc. Co. v. Whitesand, 145 Ala. 617, 39 So. 576.

The general rule even under the codes and practice acts, is that it is not permissible to substitute, by amendment, a new plaintiff or defendant in place of an original sole plaintiff or defendant, except in case where there is a privity or succession of interest. 3 Cyc., page 48. Appellant therefore contends that the substitution of plaintiffs herein permitted was fatally erroneous; was in contravention of section 775, chapter 75, Code of 1906; constituted an annullment of section 207, chapter 20, Code of 1906, and of section 2723, chapter 73, code of 1906, and should cause this case to be reversed and dismissed.

Brady & Dean, for cross-appellee.

Cross-appellee contends that the court overstepped the liberality allowed in the matter of amendments, when, after all the testimony of plaintiff was in, permission was given to strike out the plaintiff, who admittedly had absolutely no title in the goods, and then and there, for the first time, bring in a totally different party, new to the litigation, who likewise had no title in the goods, and make him a plaintiff.

Such an amendment should not have been permitted; but with it or without it, cross-appellant has no case against this defendant, and the judgment was the only proper one.

A. A. Cohn, for appellee.

The court did not err when it permitted the amendment, and our supreme court has said in the case of Miller v. The Northern Bank, 34 Miss. 410, that it will not reverse a case for an alleged error in the exercise of that discretion of granting a leave to amend, unless it be manifest that the party complaining of its exercise has thereby been injured. Section 775, chapter 75 of the Code of 1906, states expressly that parties will be permitted to amend as to mistakes in name of any part of the suit. At the most, this was merely a mistake in the names and the court was perfectly correct in permitting the same. So anxious has our law been, that permits amendments of this nature, that each Code adopted by our legislators had contained a section almost identical with the aforesaid section in the Code of 1906. Hutchinson Code 1848, pages 848-849; Code 1857, page 508; Code 1817, section 621; Code 1880, section 1581; Code 1892, section 171.

Our courts have repeatedly construed this section of the different Codes and have always permitted the parties to amend. Denton v. Stephens, 23 Miss. 194; Montague v. King, 37 Miss. 441; Tully v Herrin, 44 Miss. 626; Cooper v. Grandberry, 33 Miss. 117; Weathersby v. Sinclare, 43 Miss. 189; Sharp v. Spengler, 48 Miss. 360; Bloom v. McGrath, 53 Miss. 249; Dyer v....