Opinion
Action by Arthur Eugene Vandenbark against E. H. Busiek and others. Natural Resources, Incorporated, was joined as a party plaintiff. On defendants' motion to strike the amended complaint in which Natural Resources, Incorporated, was substituted for Arthur Eugene Vandenbark as plaintiff instead of being joined with him as plaintiff.
Motion sustained, and amended complaint stricken.
J. Ivan Cole, of St. Elmo, Ill., for plaintiff.
Kern, Pearce & Pearce, of Carmi, Ill., and E. J. Lundy, of Tulsa, Okl., for defendant.
WHAM, District Judge.
The above case was set for trial at Benton, Illinois, on June 13, 1940. The parties appeared before the court and there was presented to the court, without prior notice, a motion on the part of the plaintiff to substitute as party plaintiff for Arthur Eugene Vandenbark the transferee pendente lite of the interests of said Arthur Eugene Vandenbark in the subject matter of said suit, namely, Natural Resources, Incorporated, a corporation. Upon objection to the allowance of said motion by defense, it was ordered by the court that instead of the substitution of parties, as prayed in said motion, said Natural Resources, Incorporated, be joined as a party plaintiff. The ruling of the court appears from the record as follows: ‘ It is ordered by the court that said motion be and the same is hereby allowed and that the said Natural Resources, Incorporated, a corporation, of Martinsville, Indiana, be and it is hereby joined as a party plaintiff herein, to which ruling of the court, the defendants by counsel then and there excepted.’ In subsequent minutes of the proceedings an error crept in whereby the said joinder was referred to as a substitution of parties.
After careful consideration of the procedural situation presented by the record, in the light of Rule 25(c), Federal Rules Civil Procedure, 28 U.S.C.A. following section 723c, I am of the opinion that my first impression, as expressed in the ruling mentioned above, that there should be a joinder of parties rather than a substitution of parties, was correct and I see no reason at this time for changing the order.
In view of the above facts, the motion of the defendants to strike the amended complaint in which Natural Resources, Incorporated, is substituted for Arthur Eugene Vandenbark as plaintiff instead of being joined with him as plaintiff, as directed in said order, is sustained and the amended complaint is stricken.