People ex rel. Herbert v. McKinley

Fellows, C. J.

(after stating the facts). We have examined this record and find no reversible error. We shall not, however, take up and discuss each of *114 the assignments of error as we are clearly of the opinion that an action of replevin can not be maintained in the name of the people of the State of Michigan for the use of the party bringing the action, and that the trial judge should have directed a verdict for the defendant at the close of the case. The mandate of the legislature is (3 Comp. Laws 1915, § 12353):

“Every action shall be prosecuted in the name of the real party in interest.” *' * *

Plaintiff absolutely abandoned his action on the official bond of the sheriff, discontinued the suit as to all the defendants except the sheriff, and relied solely on his right to recover in an action of replevin. When he did so, the trial judge would doubtless have permitted him to amend the proceedings by substituting the proper plaintiff had he so requested. This he did not do, but in face of defendants’ motion proceeded with his case and took his chances. If plaintiff had prevailed in the court below it is quite probable that this court under the broad power given it to grant amendments would have permitted an amendment here to save the judgment. Peacock v. Railway Co., 208 Mich. 403 (8 A. L. R. 964) ; People v. O’Connell, 214 Mich. 410 . This would be done to save a mistrial and in the furtherance of justice. But this we should not do at the request of the appealing party. Johnson v. County of Muskegon, 195 Mich. 722 . The legislature in its attempt to simplify the practice has enacted the provision above quoted. We are not inclined to disregard it.

The judgment will be affirmed.

Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.