Crockett v. St. Louis Transfer Co.

1. Practice, civil — Petition—Ammchñml; when relates back — Limitations.— When an amendment to a petition in a suit for damages, (W. S., 519, jj 2.) sets up no new matter or claim, but is merely a variation of the allegations affecting a demand already in issue — as whore by the original petition a party was assigned to the wrong side of the case, and the mistake was corrected —it relates to the commencement of the suit, and the running of the statute of limitations is arrested at that point. (Buel vs. St. Louis Transfer Company, 45 Mo. 562, affirmed.) 2. Damages — Suit for, under statute — Father and mother as plaintiff, divorce of — In a suit for damages under the statute, (W. S., 520, § 2,) the father and mother of the deceased child may join as plaintiffs although divorced prior to. the accrument of the cause of action. (Buel vs. St. Louis Transfer Co., 45 Mo. 562, affirmed.) 8. Practice, civil — Parties—Husband to be joined with wife when the marriage has taken place after the commencement of the suit — Amendment, when made. —When a suit has been begun by a woman who afterwards marries, the petition may be amended so as to make her husband a joint plaintiff; and such amendment under the statute, (W. S., 1034,) may be made at any time before final judgment.

Appeal from St. Louis Circuit Court. I. The plaintiffs were barred of their action by the statute of limitations, by failure to bring suit within the year. The court below erred in allowing plaintiffs to amend because the amendment changed “ substantially the claim and defense.” It substituted a new and wholly different-action for the old one. Ruth Buell the mother of the deceased child could not sue alone under the statute, she must be joined by lier husband, —though divorced — who was father of the deceased child. He could not be made party defendant. He must be a coplaiutiff. (a.) No action proper was pending so long as the mother was sole plaintiff, and especially during the interval of four months when her husband was not a party on either side. (Knickerbocker Insurance Company vs. Hoeske, 32 Maryland, 817.) (5.) An amendment in a material matter, as in making a new party plaintiff without whose joinder recovery was impossible, without notice to defendant, is improper. (Keller vs. Biasdel, 2 Nev., 162; Alexander vs. Stewart, 23 Ark., 18; State vs. Martin, 20 Ark., 636.) Plaintiff, Samuel F. Buell, was barred by statute and l^eyond doubt, if he is barred, all are barred. (30 Ga., 873-4; 10 B. Monroe, 83 ; 34 Miss., 437 ; 4 T. B., 516 ; 20 Mo., 530; 32 Mo., 144; 37 Maine, 563.) II. The court erred in permitting the amendment of the plaintiff, in making the second husband John Crockett a party plaintiff. Plaintiffs had full notice by motion of defendant for non-suit at the close of plaintiff’s case, that defendant claimed that Crockett was a necessary party. He might at that time have asked to make him'a party, though even that is to be doubted. He did not ask to do so until the proof was all in, the case closed and instructions submitted, when upon intimation from the judge of this view of the law, he asked and was allowed to add a new party. Liberal as our statute is in this respect, it is not believed it was intended to cover or does allow such amendments. Plaintiff although fully informed of the defect of parties, refused to amend until the case has reached its last stage, and then ask leave to amend only to avoid an instruction framed and approved, aimed at the defect. But observe the accompanying irregularities, flowing from this untimely amendment, (a.) A new party is added, and yet the jury is not sworn anew. Is the verdict by it rendered binding as to Crockett? Is it a verdict at all — if the jury be not sworn to try the issues as between the parties ? (5.) The verdict by its terms excluded John Crockett. Is that a verdict in this case? And can a judgment be entered properly in favor of plaintiffs, designed to include Crockett, which rests only on a verdict expressly giving to the plaintiffs, Buth aiid Samuel 1C Buell, by name and to them only, “$5,000 damages for the killing of their child?” The verdict does not support the judgment, (c.) If Crockett is a necessary party as beyond doubt he is, (2 W. S., Cli. 110, § 8, p. 1001,) — -how is he affected by the limitation, and if he is barred, how can the other parties sue? (King v. Avery, 37 Alabama, 169.) I. Tlie question raised in relation to the amendment of the original petition by making Samuel F. Buell a party plaintiff instead of defendant, and the questions growing out of the divorce were settled when this case was in this court before. (Bnel vs. Transfer Company, 45 Mo., 562.) II. There was no error in the action of the court at special term in causing John Crockett the husband of the female plaintiff, to be joined as co-plaintiff. (W. S., 1031, § 3-6.) Where there is a defect of parties, advantages of such defect can only be taken by demurrer or answer. If not so taken it is waived. (W. S., Yol. 2, p. 101.5, § 10; Groetz vs. Ambs, 27 Mo., 35.)