Final v. Backus

Cooley Oh. J. The several errors alleged in this record will be considered somewhat in the order in which the supposed objectionable proceedings took place in the progress of the cause. The third assignment of error relates to the action of the court in setting aside the default of the plaintiff and the proceedings based thereon. This action pertains exclusively to the practice of the court, and forms no part of a common law judgment record ; it cannot therefore constitute a ground of allegation of error. — Pearson v. Eaton, recently decided. The first, second, fourth and fifth assignments of error are based upon the proceedings of the court in permitting an amendment to correct the name of the plaintiff, which by the mistake of his attorney was erroneously given in the writ. If the court had jurisdiction to permitj such an amend — 229 — ment, its action in allowing it like that in setting aside a default, would be purely a matter of discretion, and should not be introduced into a judgment record. The plaintiff in error has referred to several cases which he thinks establish the position that the court has no authority to permit such an amendment, unless, which was not the case here, there is something in the record to amend by. The most of these cases however, are cases where the amendment had the effect to change the parties to the suit. Such was the case in Wilson v. Wallace, 8 Sergt. & R. 53; Chamberlain v. Hite, 5 Watts, 373, and Willink v. Renwick, 22 Wend. 608, in each of which it was sought to add a party by amendment, and in Peck v. Sill, 3 Conn. 157, where it ivas sought to strike out the name of a party plaintiff. Such an amendment would obviously change altogether the ground of recovery, and we do not doubt the correctness of the decisions which hold it not permissible. There are some cases, however, where the amendment to correct the name of the plaintiff has been held, in the absence of any statutory provision applicable to the case, to be inadmissible. — Albers v. Whitney, 1 Story, 310 ; Lake v. Morse, 11 Ill. 587; while on the other hand in Elliott v. Clark, 18 N. H. 422, the Supreme Court of New Hampshire, permitted such an amendment to be made. “We are of opinion,” say the court “ that the power to amend depends not upon the question, whether the amendment changes the name, but whether or not it really changes the party. If it only cures a mistake in the name of the party in fact prosecuting the writ, it may be made. But if it introduces a different party it is inadmissible.” Wé think, however, that this question is settled by our statute of amendments, which permits the court in which any action shall be pending to amende any process, pleading or proceeding in such action, either in form or substance, on such terms as shall be just, at any time before judgment — 230 — rendered therein. — Comp. L. §4416, and which, in specifying the defects for which a judgment shall not be stayed, reversed, impaired or in any way affected, expressly mentions any mistake in the name of any party or person.— Comp. L. §4419, Under the statute from which ours is taken, errors in the names of plaintiffs have been suffered to be amended in New York; — Agent of Mount Pleasant Prison v. Rikeman, 1 Denio, 279; and the same ruling has been had in Massachusetts; — Kincaid v. Howe, 10 Mass. 203; Sherman v. Connecticut Bridge, 11 Id. 338. In Wight v. Hale, 2 Cush. 486, the court speaking of an amendment of the name of one of the plaintiffs from Wright to Wight say, “that the court were not only authorized but required to allow the amendment, cannot admit of a doubt. By the Revised Statutes, Ch. 100, § 21, it is enacted that no writ, process, declaration or other proceeding in the courts, in course of justice, shall be abated, arrested, quashed or reversed for any circumstantial error or mistake, when the person and case may be rightly understood by the court; and by the 24th section it is further enacted, that no judgment shall be reversed for any defect or imperfection in matter of form which might by law have been amended; and by the Statute of 1839, Ch. 151, § 1, it is provided that amendments, not material to the merits of the case, and by which the opposite party cannot be prejudiced^ may be allowed without payment of costs. It has been argued for the defendant that by the amendment a new plaintiff and a new firm were introduced, but we think it clear that such was not the effect of the amendment. The effect was properly to correct a clerical mistake, which had occurred by the misnomer of one of the plaintiffs, and it is quite clear that such a mistake may be corrected by amendment.” This decision, under a statute quite similar to ours, appears to us reasonable, and fully warrants the action of the court below in this case. — 231 — The twelfth error goes to the right of the plaintiff to maintain the action upon a' demand. originating in favor of his grantor, for the conversion of logs obtained by a trespass upon the land granted to him, and which was assigned to him before the commencement of suit. Our statute— Comp. L. § 4,159, as amended in 1863, permits the assignee of any bond, note or other chose in action, to sue and recover the same in his own name; and it is not claimed that this action is improperly brought, provided the demand is properly assignable. The position is, that the right of action for a tort is not the subject of assignment; and this, we understand to be the general rule. — 1 Spence, Eq. Juris. 180-1; 2 Id. 868 to 873; Adams’ Eq. 54; Story’s Eq. Juris. § 1040, g; Carroll v. Potter, Walk. Ch. 365; Rice v. Stone, 1 Allen, 566; Comegys v. Vasse, 1 Peters, 213. But this rule applies only to those torts which are merely personal, and which, on the death of the person wronged, die with him; while torts for taking and converting personal prop-* erty, or for injury to one’s estate, and generally all such rights of action for tort as would survive to the personal representatives, may, it seems, be assigned so as to pass an interest to the assignee which he can enforce by suit at law. —North v. Turner, 9 Sergt. & R. 234; Butler v. The N. Y. & E. Rail Road, 22 Barb. 110; People v. Hudson R. R. R. 4 Duer, 74; Waldron v. Willard, 3 E. D. Smith, 488; McKee v. Judd, 12 N. Y. 622; Rice v. Stone, 1 Allen, 566; Jordan v. Gillen, 44 N. H. 424. The seventh and ninth assignments of error relate to the admission in evidence of certain deeds which purported to be executed in the State of New- York, and which were certified in the manner required by our statute to entitle them to record. In their brief, counsel claim the admission to have been erroneous, on the ground that it does not appear that the grantors in the deeds owned the lands therein described, and that, consequently, they were irrelevant. — 232 — It is a sufficient answer to this, that no objection on that ground appears to have been taken on the trial, and we cannot assume on this record that their relevancy did not appear. It is also claimed that one of them was imperfect in acknowledgment, the abridgment “ J. P.” appended to the name of the person taking the acknowledgment being the only designation of official character; and this, it is claimed, has no understood meaning in the law. Our statute, however, prescribes what shall be the evidence that a deed, executed out oí the state, is properly acknowledged according to the laws of the state where the execution takes place; and that evidence is furnished in due form by the certificate appended to this deed. The officer who certifies to the due execution of the deed, explains the meaning of the abbreviation by attesting the official character of the person employing it. The tenth error is based upon the admission of evidence to show the value of logs taken from the land trespassed „upon, after they had been removed to Saginaw, in an adjoining county to that in which the trespass was committed. The action was trover for the conversion of these logs, and as, upon the theory of the plaintiff’s case, they were the property of his assignor, as well after they reached Saginaw as before, we perceive no error in receiving evidence of their value at that place. The actual change in the character of the property appears to -have taken place when they were manufactured into lumber there; and although the owner of the land from which they were taken might have treated their removal from the land as a conversion,' he was not compellable to do so, but might have followed the logs and reclaimed them at Saginaw. This being so, the plaintiff had a right to treat the time of the manufacture of the logs into lumber as the period of conversion, and to recover théir value accordingly. The eleventh assignment of error is upon the admission of oral evidence of the time when the plaintiff bought the land on which the trespass was committed. — 233 — Of tbis it is sufficient to say that it could not possibly prejudice the defendant. The plaintiff put his deed in evidence, as well as the written assignment of the demand sued upon; and the oral evidence appears to us to have been wholly unnecessary and entirely harmless. Under the twelfth assignment of error, the want of a stamp upon the instrument which transferred the right of action to the plaintiff, is relied upon as rendering it invalid. The bill of exceptions is not very clear upon this point, but the inference from the language employed is, thgt at the time the instrument was actually received in evidence, it had upon it a proper revenue stamp; and we do not therefore feel called upon to consider the question whether the law of Congress, excluding unstamped instruments from being received as evidence, has any application to the State courts. The sixth and eighth assignments of error are based upon the action of the court in refusing a new trial. That action, like the order permitting an amendment of the writ, was purely matter of discretion, and constitutes no proper part of the record. It should not have been returned upon the writ of error, and, being returned improperly, we can take no notice of it. We find no error in the record, and the judgment must be affirmed, with costs. The other Justices concurred.