State v. Napton

• Decision Date: 13 November 1900
• Citation: 62 P. 686,24 Mont. 450
• Parties: STATE ex rel. ALLEN v. NAPTON, Judge.
• Court: Montana Supreme Court

62 P. 686

24 Mont. 450

STATE ex rel. ALLEN v. NAPTON, Judge.

Supreme Court of Montana

November 13, 1900

Certiorari by the state of Montana, on the relation of C. W. Allen substituted for J. H. Duffy, to Welling Napton, judge of the district court of the Third judicial district of Montana for the county of Deerlodge, to vacate an order requiring plaintiff in an action appealed from a justice court, in which he was appellee, to give bond required by statute to be given by a nonresident plaintiff.Motion to quash the writ denied.

Duffy & Casey, for plaintiff.

B. F Maiden, for defendant.

PIGOTT J. Certiorari.

In the case of Allen against Gibbs, pending before a justice of the peace in the county of Deerlodge, on the 24th day of March 1900, judgment was rendered in favor of the plaintiff for $25 and costs.On the 4th day of April Gibbs served and filed a notice of appeal to the district court, and on the 20th day of the same month he filed an undertaking on appeal.On April 23d Allen served and filed his exceptions to the sufficiency of the sureties.On April 27th Gibbs gave notice to Allen of the filing of a new undertaking executed by sureties other than those who had signed the first undertaking, and on April 28th the new undertaking was filed.None of the sureties justified, nor was notice that they would justify ever given neither did Allen waive justification.On May 3d the justice of the peace transmitted to and caused to be filed by the clerk of the district court of the county of Deerlodge the proper transcript on appeal, and on the same day Allen served and filed a notice of motion to dismiss the appeal upon the ground that the sureties on neither undertaking had justified as required by the statute.On May 9the court denied the motion to dismiss the appeal.Thereafter Gibbs obtained from the district court an order, dated the 7th day of August, 1900, which, after reciting that Allen, at the commencement of the action, was, and then remained, a nonresident of the state of Montana, and the motion of Gibbs for an undertaking to secure costs, required that Allen must, within 30 days from that date, file an undertaking in the sum of $300, conditioned according to the provisions of the statute, "failing which this action will stand dismissed at plaintiff's costs."Since this order was made, no further action, so far as the record discloses, has been taken in the court below.This proceeding was instituted for the purpose of annulling the order of August 7th.In the title of the proceeding J. H. Duffy is named as the relator and plaintiff, and in the body of the affidavit in support of the application for the writ Duffy is described as the "petitioner"; the further averments being that he is the agent and one of the attorneys for Allen, and as such is beneficially interested therein, and that Allen is a nonresident of and absent from the county of Deerlodge and state of Montana, wherein Duffy resides.On the hearing in this courtthe defendant, the judge of the district court of Deerlodge county, moved to quash the writ and to dismiss the proceeding upon the grounds hereinafter stated.Counsel for the plaintiff then asked leave to amend the application and writ by substituting the name of Allen as the plaintiff in the place of that of Duffy.

1.The first ground of the motion to quash the writ and to dismiss the proceeding is that the application was not made by the party beneficially interested.There is no allegation of fact indicating that Duffy is the proper partyplaintiff in this proceeding.The fact that he is the agent and attorney of the party beneficially interested in no wise attracts to him the beneficial interest of his principal or client.The amendment sought to be made is, however, one of form, for the body of the application for the writ states facts which show beyond question that the only person beneficially interested is Allen, and the averment therein that Duffy is beneficially interested must be disregarded in the consideration of this phase of the proceeding.By section 774, Code Civ. Proc., the court may, in furtherance of justice, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, and may, in its discretion, allow an amendment to any pleading or proceeding in other particulars; and by section 778 of the same Code, the court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties.We have then, a special proceeding wherein the wrong party is named as the plaintiff, although it clearly appears from an inspection of the application for the writ that another person is the party beneficially interested, and that the proceeding is prosecuted in behalf of such person.The use of Duffy's name instead of Allen's resulted from a mistaken view with respect to the person having the beneficial interest.The defendant was not, and could not have been, misled or injured, nor his rights jeopardized, by reason of this formal error.The statement that Duffy is the party beneficially interested is a mere conclusion of law, which is not only unsupported by the averment of any fact, but is conceded to be untrue.The amendment prayed for is one authorized by the statutes, and will be allowed, and the name of Allen is directed to be substituted for that of Duffy.The title will be changed accordingly.

2.That the affidavit for the application was not made by Allen, the party beneficially interested, is another ground of the motion....