Opinion
(June Term, 1858.)
A Court has no power to order a new process to bring in a new defendant during the pendency of a suit.
Motion to amend, heard before CALDWELL, J., at the last Superior Court of Wilson county.
Strong, for the plaintiff.
Dortch, for the defendant.
The writ was issued in April, 1857, returnable to the Fall Term of that year against John T. Barnes. The cause was put to issue and stood on the trial docket at this term, when, upon the suggestion that Lewis J. Dortch had been partner with the defendant, it was moved that the plaintiff have leave to amend by issuing process to bring in William T. Dortch, the administrator of Lewis Dortch, to answer to this action. This was objected to by the said William T. Dortch, who was present in Court, and the motion refused by the Court.
From which decision, the plaintiff appealed.
There are exceptions to every general rule, and we think that an exception is at last presented by the present case to the rule which has grown up in the construction of our statute of amendments, i. e., "the Court has power to amend any thing at any time."
The case falls under the first class set out in Phillipse v. Higdon, Bus. Rep. 380, "every court has ample power to permit amendments in the process and pleadings of any suit pending before it." So, if this be an amendment, the Court has power to make it. But it is not an amendment. The effect of the order is to make, and not to amend, this process. We put our decision on the ground, that whenever it is necessary to issue new process to bring in a new defendant, the operation amounts to something which exceeds an amendment, in the broadest signification in which the word has ever been used.
Among the great number of cases on the subject of amendment in our reports, it is no where decided, or intimated, that the Court has power to issue new process. See the confusion that would result: The new defendant must make "defense" and enter his pleas. This he does at the term in which he is brought in; of course he cannot be required to do it nunc pro tunc. No action can effect that. So, there are distinct and unconnected pleadings at different times in the same suit; to say nothing of the fact, that the defendant, who is already in, must be made to stand by until the new man can be arrested and brought in.
But again: the issuing of a writ is the commencement of a suit; consequently, the suit, as against the different defendants, is commenced at different times, and the pleas and orders in this "double headed monster," will be of different dates, unless the power of the Court can be stretched so far as to make the new defendant "consider himself" as having been sued nunc pro tunc. It was not the intention of the Legislature to confer upon the courts the power to produce such a legal absurdity. We concur in opinion with his Honor.
PER CURIAM, Judgment affirmed.