Shannon v. Rester

Mississippi Supreme Court October 15, 1891

Shannon v. Rester, 69 Miss. 238 (Miss. 1891)

Campbell

Opinion of the Court

Campbell, C. J.,

delivered the opinion of the court.

This case may not be presented to us as it appeared to the circuit court, but the result cannot be approved. By it the plaintiff was made to lose a sum which the defendant admitted that,he owed, and tendered and brought into court for the plaintiff.

*242The plaintiff should have been allowed to dismiss his action as to the accounts as. to which he offered to dismiss, and to amend and proceed for the other account. It is not for the defendant, or the court for him, to elect on which of his claims the plaintiff will demand judgment. The court was right in permitting the plaintiff to amend, as he did, and wrong in afterwards changing the order and compelling him to abandon the claim on which he desired and proposed to demand judgment.

Reversed, and leave given the plaintiff to amend by striking out all except the account for cotton-seed, and to proceed with the suit thus amended, and cause remanded for further proceedings in the circuit court, in accordance with this opinion.

Reference

Full Case Name: H. E. Shannon v. J. J. Rester
Cited By: 1 case
Status: Published
Syllabus: Practice. Amendment. Misjoinder. Nonsuit. When plaintiff, in his own name, sues on several demands, one of which he holds under a verbal assignment from a partnership, it is error to refuse his application to amend so as to proceed, as to that, in the name of the partners for his use, and to dismiss as to the other claims.