Lake v. Morse ex rel. Fordham

Opinion by Treat, C. J.: In our opinion, the Circuit Court erred in allowing the amendment. It was, in fact, changing the parties to the action, without anything appearing in the case to justify it. Amendments are always allowed, where there is anything to amend by, and injustice will not result to the other party. This was not the case of a mistake or misprision, which was within the provisions of the statute of amendments and jeofails. The common law did not permit amendments of this character, and we have no statute that authorizes them to be made. The general rule seems to be well established, that Courts will not allow amendments to be made, which change the parties to the action, unless there is something in the record to authorize the amendment. And especially is this the rule in relation to amendments that change the plaintiffs in the action. The following authorities are direct to the point, that it is not competent to change the names of the plaintiffs, unless there is something to amend by—something in the record to show that what is sought by the amendment was originally designed, but has been omitted by mistake or misprision. Willink vs. Renwick, 22 Wendell, 608; Peck vs. Sill, 3 Connecticut, 157; Albers vs. Whitney, 1 Story’s Rep., 310; Wilson vs. Wallace, 8 Sargeant and Rawle, 53; Chamberlain vs. Hite, 5 Watts, 373. In the case of Maxcy vs. Padfield, 1 Scammon, 590, it was decided that the Circuit Court could not amend the papers, in an appeal from the judgment of a justice of the peace, by striking out the name of one of the defendants in the Court below. If a mistake has been made in the names of the plaintiffs, and there is nothing in the record to authorize its correction, the only course is to dismiss the suit, and commence a fresh action. It would, perhaps, be well that Courts should possess the power to allow amendments in all cases, where justice would be promoted thereby; but it cannot be assumed without the authority of statute. The case of Brace vs. Benson, 10 Wendell, 213, is not in point. In that case, the Christian name of one of the plaintiffs was allowed to he changed, so as to conform to a written request for process, delivered to the justice before the process was issued. There was something to amend by. Nor is the case of Shirtliff vs. The People, 2 Scammon, 7, in point. In that case, the original process clearly authorized the amendment. The judgment must be reversed, with costs. Judgment reversed.