Tormey v. Pierce

49 Cal. 306

• Court: California Supreme Court
• Decided: July 1, 1874
• Docket: No. 3,884
• Status: Published

Opinion

By the Court, Crockett, J.:

Section 68 of the Practice Act, in force when this action was tried, authorizes the Court, in furtherance of justice, to “amend any pleading or proceeding by adding or striking out the name of any party;” and there was no error in the order directing the names of two of the plaintiffs to be stricken from the complaint, nor did the order render it necessary to file an amended complaint in the names of the two remaining plaintiffs. The order was entered in the minutes, and became a part of the judgment roll. (Practice Act, Sec. 203.) It therefore appeared on the face of the record in what manner two of the plaintiffs went out of the case, and why the action was thereafter prosecuted in the names of the other plaintiffs alone.

The point that by striking out the names of two of the plaintiffs, the cause of action was changed, is not tenable. The two remaining plaintiffs, as tenants in common, could maintain a joint action under our statute; and after the names of the other plaintiffs were stricken from the complaint, its averments were that the two remaining plaintiffs were jointly entitled to the possession. In legal effect, it was the same as before. There is nothing in the point that it was error to permit the amendment, except on payment of costs. Section 68 only requires that amendments by adding or striking out the name of a party shall be “on such terms as may be proper.” The Court below was to exercise its discretion as to the terms, and we do not perceive that it abused its discretion.

Order and judgment affirmed. Remittitur forthwith.

Mr. Justice Rhodes did not express an opinion.