Tormey v. Pierce
Tormey v. Pierce
Opinion of the Court
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
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.
Reference
- Full Case Name
- JOHN TORMEY, PETER FAGAN, ISAAC LANKERSHIM and GEORGE HICKSON v. JOHN PIERCE
- Cited By
- 1 case
- Status
- Published
- Syllabus
- Striking Names from a Complaint.-—If, on the trial of an action of ejectment, where there are several plaintiffs, it appears that the evidence fails to show that a part of the plaintiffs have any title to the demanded premises, the Court may make an order striking from the complaint the names of such plaintiffs, and render judgment in favor of the remaining plaintiffs. Amending Complaint.—If an order is made by the Court striking names . from the complaint, such order becomes a part of the judgment-roll, and it is not necessary to amend the complaint. Order under 68th Section oe Pbactice Act.—An order óf Court striking names from a complaint may be made without payment of costs. The Court may exercise its discretion in making it, and if there is no abuse of such discretion, the order will not be disturbed.