Weaver v. Young

Opinion by Simpson, C.: The only question discussed by counsel on both sides in their briefs is, the power of the court to make the amendment. This consisted in substituting the name of E. J. Young as plaintiff, in the place of Joseph M. Young, who, by mistake of the attorney for defendant in error, was originally made the plaintiff in the action. E. J. [72] Young is the wife of Joseph M. Young, and is the person to whom the deed was made, which is now claimed to have conveyed to her the title to the land involved in this controversy. We must confess that if this question were now presented to the court for the first time, we would have great difficulty in controlling the argument, and resisting the authorities cited by counsel for the plaintiff in error. The line of decision heretofore made by the court on this question is broad enough to embrace the amendment made in this case, and there is no error in the district court permitting it. In City of Atchison v. Twine, 9 Kas. 350, the action was brought by the widow, and the court permitted the administrator to be substituted as plaintiff; and this court, by Chief Justice Kingman, says that “ the power of the court to make the amendment is undoubted. Nor should we hesitate if it were the mere substitution of one name for another.” In National Bank v. Tappan, 6 Kas. 456, the action was brought in the name of Tappan. It turned out on the trial that the claim was in favor of the firm of Tappan & Weichselbaum, and the amendment was made and affirmed here. In Hanlin v. Baxter, 20 Kas. 134, the action was entitled in the name of John B. Baxter, and Wm. O. Baxter was substituted as plaintiff in the suit. These cases seem conclusive against the claim of the plaintiff in error. We recommend the affirmance of the judgment of the district court. By the Court: It is so ordered. All the Justices concurring.