State Ex Rel. Clendenin v. Turner

Merrimon, J., (after stating the facts). We express no opinion as to whether the plaintiffs’ alleged cause of action is well or ill founded, because in any view of it, it arose and was introduced into this action long after it began, displacing entirely the original cause of action alleged. This .is an anomaly that has no legal sanction, and cannot be allowed. Certainly the principal cause of action must exist in all cases at the time the action began. It would be unjust and absurd to bring a party into Court to answer the plaintiff, before he had a right to sue. The mere fact that the cause of action is introduced into a pending action, cannot alter the case, because this in effect makes the action a new one. The notion that seems to prevail to some extent, that the Court has complete control of an action, and authority to change and mould its nature and purposes in its discretion, is a mistaken one. The statute prescribes how actions shall be brought, and the course of procedure therein. As soon as an action is brought and the complaint is filed, it takes on and has distinctiveness and integrity of nature as to the parties to it, and that may come or be brought into it, and the cause or causes of action sued upon, that permeate and go with it to its end. It is not subject to the arbitrary control of the parties or of the Court — it must be proceeded in according to law, and only such amendments as to parties or the cause of action, may be made as its nature and scope warrant. Amendments in this respect must be such, and only such, as are necessary to promote the completion of the action begun — all parties necessary for that purpose may come or be brought into it, and so also, any and all such amendments may be made as to the cause of *422 action, as may be necessary to its completeness in all respects. But neither general principles of practice, nor the statute providing for amendments, authorize amendments that reach beyond these purposes. Especially, the Court has no authority to allow such amendments as to parties, or as to the cause of action, as make a new, or substantially a new action, unless by the consent of the parties. Indeed, this would not be to amend, in any proper sense, but to substitute a new action by order, for and in place of a pending one, which the Court cannot do. General principles of procedure, and, as well, the statutory regulations upon the subject, contemplate and intend that an action shall embrace but one litigation or matter, and only such parties, matters and things, as are necessary, germain, and incident to it, except that several causes of action may be united in- the same action, as specially provided by statute. Any other rule or method would certainly be subversive of orderly and intelligent procedure, and lead to intolerable confusion, as well as injustice to litigants. Grant v. Burgwyn, 88 N. C., 95; Merrill v. Merrill, 92 N. C., 657; McNair v. Commissioners, 93 N. C., 364; Ely v. Early, 94 N. C., 1. Now, in the case before us, the action was brought by the second guardian against the first one and the sureties to his guardian bond, to compel him to account, &c. The plaintiff died pending the action. Afterwards, his administrator became a party plaintiff and filed his complaint, alleging a new, distinct and entirely different cause of action, that arose since the action began. To this there was a demurrer, which was sustained, and the Court allowed the plaintiff to make new parties plaintiff, who, putting-aside the complaint and all prior pleadings, filed a new complaint, alleging a new, distinct and different cause of action, substituted for the original plaintiff and the original cause of action alleged. *423 This was undertaking substantially to make a new action out of a pending one. The Court therefore properly decided that the plaintiffs could not maintain the present action. Judgment affirmed. No error. ' Affirmed.