Summary
In Wilcox v. Hawkins, 10 N.C. 84, the Court said that although this Court could not allow the pleadings to be amended by inserting the names of the true members of a firm in the place of others which had been put into the writ by mistake, yet such an amendment might have been made on a reasonable application to the court below.
Summary of this case from Green v. DeberryOpinion
June Term, 1824.
1. Whenever it appears on the face of the pleadings that there are other parties to the contract who are not joined in the action as plaintiffs, it may be demurred to or taken advantage of in arrest of judgment; and if the objection do not appear on the face of the pleadings, but is shown in evidence, it is a proper cause of nonsuit on the general issue.
2. The omission in the writ of the name of a party plaintiff may be amended on seasonable application to the court below, but this court has no power to amend in such case.
ASSUMPSIT, brought in the name of John V. Wilcox, Arthur Johnson, and Major Drinkard, merchants, under the firm of "John V. Wilcox Co.," and the plaintiffs declared: First, as assignees, upon a special promise of defendant, at the time of his assignment of a bond, drawn by one Banks, for $1,050; second, upon a general assignment. They then offered in evidence the bond of Banks, payable to the defendant two days after 2 October, 1819, with the following indorsements, which were proved:
"November 6, 1819. I assign the within to Hinton Brame.
J. H. HAWKINS.
"Pay to J. V. Wilcox Co.
HINTON BRAME."
And on the trial of the cause below it was shown that the present plaintiffs composed the firm of "Wilcox, Johnson Co.," and that the firm of "J. W. Wilcox Co.," was composed of John V. Wilcox and Thomas Wilcox. Whereupon, on motion, the plaintiffs were called, and nonsuit; and motion for new trial having been overruled, the plaintiffs appealed to this Court.
This suit was brought in the name of the three persons specified in the writ, viz., Wilcox, Johnson, and Drinkard, under (85) the firm and description of "John V. Wilcox Co.,"; but the plaintiffs show from their own evidence that "John V. Wilcox Co.," was a firm composed of John V. Wilcox and Thomas Wilcox; consequently one of the persons with whom the contract was entered into was not made a party plaintiff. Whenever it appears on the face of the pleadings that there are other parties to the contract who are not joined in the action as plaintiffs, it may be demurred to or taken advantage of in arrest of judgment. And if the objection do not appear on the face of the pleadings, but is shown forth in evidence, it is proper cause for nonsuit on the general issue. 1 Saund., 153, n. 1. Further, to give the plaintiffs a cause of action against the defendant it was necessary for them to show that John V. Wilcox Co., as described in the writ, had prosecuted a suit against Banks; whereas, they show a suit prosecuted against him by John V. Wilcox and Thomas Wilcox, under the firm of John V. Wilcox Co., which appears to have been correct, according to the contract, but altogether variant from the shape in which the plaintiffs have described themselves in this action. It is an evident mistake in filling up the writ, and might have been amended on a seasonable application in the proper court; but we have no power to do so here, however we may regret that the justice of the case should be entangled in form. The nonsuit was properly awarded, and the judgment must be
PER CURIAM. Affirmed.
Cited: Green v. Deberry, 24 N.C. 345; Justices v. Simmons, 48 N.C. 190; Hodge v. R. R., 108 N.C. 34.
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