Troup v. Tomberlin

Jenkins, P. J. (After stating the foregoing facts.) 1. “No amendment adding a new and distinct cause of action, or new and distinct parties, shall be allowed unless expressly provided by law.” Civil Code (1910), § 5683. So far as we know, there is no express statute permitting new and distinct parties to be added in cases of the removal of obstructions from private ways; and counsel have not brought to our attention such a statute. Accordingly, under the foregoing section of the code, it was error for the ordinary, in the progress of a proceeding to remove obstructions from a private way, to permit the plaintiff to add new parties defendant to the action; 'and the fact that the ordinary, in his final judgment, may have found in favor of and discharged such new and additional parties under the evidence submitted, does not prevent the original defendant from standing upon her rights, under the statute, to have her defenses tried independently of and unaffected by the rights and conduct of persons illegally made codefendants in the litigation. Especially would the soundness of such a rule appear manifest when upon the trial previous, statements of one of such new defendants are admitted in evidence as admissions. 2. Such new and additional parties defendant having been illegally made, over their own and the original party’s objections, all ' subsequent proceédings in the case became nugatory; and the superior court, on certiorari, should have remanded it to the ordinary for a new trial, to be had in accordance with his previous order unexcepted to. Judgment reversed. Stephens and Bell, JJ., concur.