Fling v. Trafton

13 Me. 295

• Court: Supreme Judicial Court of Maine
• Decided: June 15, 1836
• Status: Published

Opinion

After a continuance, the opinion of the Court was drawn up by

Weston C. J.

The original action was prosecuted to final judgment and execution by the attorney of record of Trafton. It is not pretended, but what he was regularly employed by him. Trafton then must be held responsible for any injury done to the adverse party in his name. We can take no notice of any other person, for whose benefit these proceedings, of which the -present plaintiff complains, may have been had. Conner’s name had been stricken from the original writ by his consent, on the motion of Trafton’s attorney. The action then stood, as if brought against Fling alone. A review had been granted of the action, in the shape in which the original plaintiff, Trafton, chose to present it, upon which judgment was rendered in his favor.

In Parker, executor, v. Parker, 17 Mass. R. 376, the question was, not whether the amendment must be, but whether it could be allowed. It was so far from being deemed essential to the prosecution of the review, that it was allowed in that case only, because it was regarded, under the circumstances, as forming an exception to the general rule relating to amendments. If it forms a precedent, which would justify the allowance of the amendment moved for, in the case before us, by the defendant in review, we think it was properly refused by the Judge, who presided at the trial. The case was left in the posture, in which it was placed by the original plaintiff, and we perceive no equitable circumstances, which justify its restoration to its original condition. As Conner was no longer a party to that action, and as the judgment neither was, nor could have been rendered against him, he could not have joined in prosecuting the review, which was rightfully brought by Fling alone.

Judgment on the verdict.