Jordan v. Chicago & Alton Railway Co.
Missouri Court of Appeals
Appeal from Audrain Circuit Court. — How. E. M. Hughes, Judge. (1) There is no power possessed by a court, or by a judge, to substitute a right party for a wrong party, plaintiff or defendant. This is a plain case of the substitution of a new party by the court, and not a question of amendment as counsel for defendant in error contends. Dicey on Parties, p. 522, rule 114; Thompson v„ Allen, 86 Mo. 85, citing 73 Mo. 688; Hajek v. Benevolent Society, 66 Mo.
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Appeal from Audrain Circuit Court. — How. E. M. Hughes, Judge. (1) There is no power possessed by a court, or by a judge, to substitute a right party for a wrong party, plaintiff or defendant. This is a plain case of the substitution of a new party by the court, and not a question of amendment as counsel for defendant in error contends. Dicey on Parties, p. 522, rule 114; Thompson v„ Allen, 86 Mo. 85, citing 73 Mo. 688; Hajek v. Benevolent Society, 66 Mo. App. 568. (2) Nor does the defendant waive its right to plead to the jurisdiction by answering on the merits, or by failing to except, or…
1Opinion of the CourtReyburn, J.
(after stating the facts as above).
—1. The statutory provisions governing amendments are very liberal in this State and are intended to cure defects "of form and in many instances upon timely ap*454plication, to afford relief against, and permit many corrections of errors of substance. But the section, 657, invoked in support of the action of the lower court, excludes and in terms prohibits amendments which substantially change the cause of action or defenses thereto even before judgment; and thereunder a party can not be permitted to substitute a different cause of action in an amended petition…
2Cases cited5 opinions
- Stubbs v. MulhollandSupreme Court of Missouri · 1902
- Sharpe v. JohnstonSupreme Court of Missouri · 1875
- Heman v. GlannSupreme Court of Missouri · 1895
- Green v. Supreme Lodge National Reserve Ass'nMissouri Court of Appeals · 1899
- Johnson v. DetrickSupreme Court of Missouri · 1899
3Cited by9 opinions
- Mertens v. McMahonSupreme Court of Missouri · 1933
- Roberts v. American National Assurance Co.Court of Appeals of Kansas · 1919
- Hackett v. Van FrankMissouri Court of Appeals · 1906
- Proctor v. Wells Bros. Co. of New YorkAppellate Court of Illinois · 1913
- B. F. Glover & Son Commission Co. v. Abilene Milling Co.Missouri Court of Appeals · 1909
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