Pérez Padrón v. Lutz

41 P.R. 559

Opinion

Mr. Justice Hutchison

delivered the opinion of the Court.

Emilia Pérez Padrón brought an action against Edward Lutz and Osear B. Frazer for damages arising out of an alleged breach of contract. Frazer was alleged to have acted as agent and attorney in fact of Lutz. The district court sustained the demurrer for misjoinder of parties. Plaintiff amended her complaint and omitted Frazer, who then moved for and obtained a judgment for costs.

The only assignment of error is that the district court erred in sustaining Frazer’s motion and in dismissing the action as to him.

In support of this contention appellant quotes from Sutherland, Code Pleading Practice and Forms, as follows:

‘‘So, also, if one defendant demurs to a complaint for misjoinder of another defendant, and the complaint is accordingly amended to obviate the objection by omitting the defendant wrongfully joined, a subsequent demurrer for failing to join such omitted defendant should not be sustained.” Vol. 1, p. 477.

In the instant case there was no “subsequent demurrer for failing to join such omitted defendant,” and the only authority cited by appellant is not in point.

The judgment appealed from must be affirmed.