Chicago, Rock Island & Pacific Railroad v. Todd

Citations

• 91 Ill. 70

Syllabus

<p>1. Abatement—non-joinder of plaintiff in tori. In an action for a tort, the non-joinder of a person as plaintiff may be pleaded in abatement. The defendant has the right to have the cause of action adjudicated in a single suit.</p> <p>2. In an action on the case to recover for the destruction of property through the negligence of the defendant, the declaration alleged that the plaintiffs, father and son, were possessed of the property as partners. The proof showing that the property belonged to the son and his mother as partners, the court gave leave to substitute the mother as co-plaintiff with the son, when the defendant asked for a continuance, and thereupon, by leave of court, the suit was discontinued hy the plaintiff as to the father, and the trial ordered to proceed at the suit of the son alone: Held, to be error, as denying the defendant the right of pleading the non-joinder in abatement.</p> <p>3. Amendment—changing parties. The amendments allowed by section 24 of the Practice act, (Rev. Stat. of 1874,) are in furtherance of justice and the rights of the parties, and not in denial of such rights. It should not be allowed so as to deprive the defendant of the right to have the entire cause of action disposed of in one suit.</p> <p>4. Variance—between pleading and evidence. Where the declaration, in an action on the case, alleges that the plaintiffs are partners, and, as such, owners of property destroyed by negligence of the defendant, and the suit as to one of the plaintiffs is discontinued without amendment of the declaration, and the proofs show the property belonged to the remaining plaintiff and another person not made a party, the variance will be fatal to a recovery.</p>