Jones v. Pendleton

115 N.W. 468, 151 Mich. 442, 1908 Mich. LEXIS 619

• Court: Michigan Supreme Court
• Decided: March 17, 1908
• Docket: Docket No. 47
• Status: Published

Opinions

Blaib, J.

The record in this cause having been amended, pursuant to our opinion reported 148 Mich., page 544, we proceed to review the order of Judge Man-dell referred to therein. Under our previous decisions in this case, the cause of action stated in the proposed amended declaration is a different cause of action from that stated in the original declaration, and if at the time of Judge Mandell’s order the statute of limitations had run against the cause of action, he did not err in refusing to allow the amendment, and his order must be sustained. Gorman v. Newaygo Circuit Judge, 27 Mich. 138; Michigan Cent. R. Co. v. Kalamazoo Circuit Judge, 35 Mich. 227; Connecticut Fire-Ins. Co. v. Monroe Circuit Judge, 77 Mich. 231; Nugent v. Kent Circuit Judge, 93 Mich. 462; Wingert v. Wayne Circuit Judge, 101 Mich. 395; City of Detroit v. Wayne Circuit Judge, 125 Mich. 634.

It is clear, however, that at the time the order was made by Judge Mandell, the statute had not run against the cause of action, and counsel excepted to the legal sufficiency of that order just as effectively by the application for a writ of mandamus as though he had formally excepted upon the record. Jones v. Pendleton, supra. The question then arises, Was the ruling of Judge Man-dell erroneous ? The cases heretofore cited, holding that an amendment introducing a new cause of action which is barred by the statute of limitations will not be permitted, have no application, because, at the time the ruling in question was made, the cause of action was not so barred.

The cases of Loranger v. Davidson, 110 Mich. 605, and Frohlich v. Graulich, 113 Mich. 65, holding that on appeal from justice’s court to the circuit court, an amendment introducing a new cause of action cannot be permitted because the issue tried, in the justice’s court will thereby be changed, have no application, for this suit was originally commenced in the circuit court.

It is earnestly insisted that .plaintiff has authority only to prosecute this suit for the cause of action for which it was commenced (see section 10113, 3 Comp. Laws) and that, therefore, the cause of action described in the declaration cannot be changed by amendment. This section is to be read in connection with the following section (section 10114) which says, “ and it [the suit] shall be thenceforth conducted in the same manner as if it had been originally commenced by or against the same executor or administrator.” We think it would be anomalous and unjustifiable to hold that there is not the same power of amendment in such cases as in ordinary cases.

It is also said that one cannot, by amendment, introduce a new cause of action. The strongest authority in support of this proposition is Angell v. Pruyn, 126 Mich. 16. There it appears that plaintiff had two distinct causes of action. He' brought suit for one of these. It was held that he could not amend his declaration so as to count upon the other. That case is clearly distinguishable from this. Here the plaintiff has but one cause of action. He failed to properly describe it. The question here is, whether the court has power to permit plaintiff to amend his declaration so that he may recover on the precise cause of action for which he brought stiit, but which he failed to properly describe in his declaration. We think it is clear that he has that power. See Strang v. Branch Circuit Judge, 108 Mich. 232; Chapman v. Colby, 47 Mich. 47; Cleveland v. Rothschild, 138 Mich. 90; Smith v. Palmer, 6 Cush. (Mass.) 519.

The judgment is reversed and a new trial granted.

Montgomery, Moore, Carpenter, and McAlvay, JJ., concurred with Blair, J.