Yates v. Kimmel

Edwards, Judge, delivered the opinion of the court. This was an action of trover, commenced by Yates, as administratrix, against Kimmel and Taylor. The declaration contained two counts, alleging the right of property to be in the plaintiff as administratrix; to which the defendants pleaded not guilty. At a subsequent term, the plaintiff obtained leave to amend her declaration, and under this permission filed a count, alleging the right of property to be in herself individually. Plea, again not guilty, and verdict for plaintiff. On motion of defendant, the court arrested the judgment, and afterwards gave judgment for the defendant lor costs. The first question, upon this statement of the case, is, was there amisjoinder of actions? The plaintiffsued originally in her capacity of administratrix, and after-wards joined a count in the same action in her individual capacity. In a legal sense, the plaintiff, in her character as administratrix, is one person, in her character as an individual she is another and a different person. If the interest of two or more be several, and there be no express contract with all, they must sue separately. Here the interest of the plaintiff as administratrix, and her in-terest as an individual, are several and distinct interests, and should be pursued separately. The courts will not take cognizance' of distinct and separate claims or liabilities of different persons in the same action —1 Chitty’s Plea. 8 and 31. Nor can a person, in the same action, join a demand in his own right, and a demand as representative of another, or in autre droit, nor demands against a person on his own liability, and on his liability in his representative capacity —1 Chit. Plea. 200; nor can a person join in the same action a demand as executor and a demand in his own right —1 Chit. Plea. 203. In this case, then, there was a misjoinder of action. The next question is, what are the consequences of this [91] ’ misjoinder? The defendant might have demurred to the declaration, but after verdict no advantage can be taken of it in arrest of judgment, or upon error. When a verdict has been rendered in any cause, the judgment thereon cannot be stayed, or in any way affected, for any variance between the original writ, plaint, and declaration, or either of them —R. C. 468, s. 7. The count leging the right of property to be in the plaintiff in her own right, is a variance from the original writ, which, after verdict, is cured by the statute. ' Nor can the ment be stayed, or in any way affected, for the omission of any allegation or averment, without proving which the triers ought not to have given such verdict —R. C. 468, s. 7. Here was an omission to allege in the amendment to the declaration that the plaintiff claimed the property as administratrix; without proof of this allegation, the jury ought not to have found a verdict for the plaintiff. It must be presumed, therefore, that this matter was proved. The judgment of the circuit court is reversed and the cause remanded; and said court is directed to enter up judgment in favor of the plaintiff upon the verdict rendered by the jury.