Manning v. Viers

56 N.W. 719, 38 Neb. 32, 1893 Neb. LEXIS 308

• Court: Nebraska Supreme Court
• Decided: October 17, 1893
• Docket: No. 5052
• Status: Published

Opinion

Ryan, C.

This case was originally commenced in the court of a justice of the peace, wherein it was docketed, and entitled “Joseph C. Viers v. Joseph P. Manning.” In the summons the plaintiff was described as Joseph C. Yiers. The title of the case in the verdict was given as J. P. Yiers, to whom the appeal bond ran as obligee. On appeal the case was docketed in the name of Joseph C. Yiers as plaintiff. The petition, however, was filed in the name of James P. Yiers, and the answer was entitled “James P. Yiers v. Joseph P. Manning.” On motion the title of the case was amended so that James P. Yiers was the plaintiff named.

The only question of importance in this case is whether or not the district court erred in permitting this amendment of the name of the plaintiff. Sectiou 144 of the Code of Civil Procedure provides that “ The court may, either before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party,” etc. This language expressly authorized the court to amend the title of the case in the respect in which it was amended, and, therefore, no error can be predicated on the order of the court in that respect. If any prejudice resulted from the discretion exercised by the court in the allowance of the amendment complained of, such prejudice should have been made to appear in some manner. Without averment or proof we cannot presume its existence. The. judgment of the district court is

Affirmed.