Leaird v. Moore

GOLJDTHWAITE, J. By tlie Code (section 2403) the courts are required to permit the complaint to be amended, “ by striking out or adding new parties plaintiff, or by striking out or adding new parties defendant, upon such terms and conditions as the justice of the case may require.'” The only question is, whether, under this section, the sole plaintiff can be struck from the record, and another person substituted in his place. Judging from its language, we think the object of the statute Ayas, to cure defects arising from a nonjoinder or misjoinder, without turning the case out of court. The words do not naturally go further than this ; and they should do so, before we would be authorized to allow a change so. radical to be made by amendment. The statute is in derogation of the common law ; and if the sole plaintiff is struck out, there are no parties, and, consequently, no case. If we were fully satisfied that it was the intention of the statute to go so far, the words might, perhaps, authorize us to give effect to that intention; but we could not do so without going beyond their plain and literal meaning; 'and we think it is better to adhere to the plain meaning of the words, unless such a construction leads clearly to a wrong result. It is impossible for us to say that the legislature, when it used the words “ adding new parties,” meant substituting a different party altogether ; and if the latter was intended, it is better that the alteration should be made by the legislature, than that the judges, by construction, should run the risk of extending the statute to cases which it is at least, very doubtful whether it was intended to reach. Judgment reversed, and cause remanded.