jointly obligated to save the constable harmless; their liability to such constable was not limited to the proportionate amounts of their claims against the Mundorfs; their liability being joint, their cause of action against appellant, which cause of action sprung from such liability to such constable, was also joint; and it was no affair of appellant's whether the amount paid to the constable was paid by one or both of said parties; this was a matter of adjustment solely between them. selves.

Did the court err in granting the amendment? Appellant in objecting to such amendment, contended: (1) That the amendment proposed was not authorized by the statute, that such proposed amendment was in effect, the substitution of new parties plaintiff, and not the addition of new parties, and that the proposed complaint was not an amendment of the complaint, but a new complaint, setting forth a new cause of action; (2) that, from the affidavits submitted upon the hearing of the motion to amend, it appeared that all the facts presented as a basis for such amendment were within the knowledge of the plaintiffs at the time of the commencement of this action, and that their attorney knew, or should have known, of the existence thereof. From the affidavit of respondents' attorney, submitted upon the motion to amend complaint, it appeared that he drew the original complaint supposing [456] that the plaintiffs therein named were partners, that the claim upon which the suits in justice court were brought was a claim which they, as partners, held against the Mundorfs, and that these two plaintiffs individually had given the undertaking to the constable; that he had since learned that the three Noziskas were partners, and that such partnership was one of the real parties in interest, and should have been made a party plaintiff. While the showing made by defendant was such as might have justified the trial court in refusing the amendment, yet we do not believe, that such court, in granting the amendment, abused its discretion, provided, as a matter of law, it had power to allow the amendment.

Was the amendment such an one as is authorized by section 150, C. C. P.? Such section provides:

"The court may, before or after judgment, in furtherance of justice, : amend any pleading, by adding or striking out

party entered into such undertaking, certainly the trial court would have had authority to allow an amendment correcting the mistake in such allegation, as such amendment would be one that should be allowed in furtherance of justice, unless, for some reason shown to the court, the court, in the exercise of a wise discretion, should have refused same. Kelsey v. Chicago, etc. R. Co. 1 S. D. 80, 45 N. W. 204. After such amendment Sinkler could have prosecuted such action to judgment and recovered against appellant upon such amended complaint, provided appellant failed to demur to such complaint upon the ground of defect of parties plaintiff. That being true, it follows that there could be no error in granting to Sinkler the amendment showing who, in fact, was his joint obligor on the undertaking. If that had been the only amendment, then, unless there was a demurrer interposed upon the ground of defects in parties plaintiff, the cause could have been prosecuted to judgment, and judgment recovered by Sinkler, although his codefendant was nonsuited. If, after such amendment, the defendant [457] had-as he clearly in such case might-demurred upon the ground that there was a defect of parties plaintiff in that the partnership was not a party to such action, clearly the court, in sustaining such demurrer, would have been bound to allow such partnership to be joined in an amended complaint and the cause to proceed. 15 Enc. P. & P. 750, 751; 30 Cyc. 143, 144.

The judgment appealed from is affirmed.

NOTE.

Right to Amend Action by Adding New Parties Plaintiff.

General Rule, 591.
Application of Rule:
In General, 594.

Persons Interested with Original Plain-
tiff, 594.

Other Beneficiaries of Action for Death by Wrongful Act, 596. Limitations of Rule, 599.

General Rule.

It is an almost universal rule, at law as well as in equity, that an action may be amended by adding proper or necessary parties plaintiff. The statutes generally subject the right to the sound discretion of the court.

England. Broder v. Saillard, 2 Ch. D. 692; Long v. Crossley, 13 Ch. D. 388, 41 L T. N. S. 793, 28 W. R. 226, 49 L. J. Ch. 168; Duckett v. Gover, 6 Ch. D. 82, 46. L. J. Ch. 407, 25 W. R. 554; Emden v. Carte, 17 Ch. D.

169, 44 L. T. N. S. 344, 29. W. R. 600, 50 L. J. Ch. 492; House Property, etc. Co. v. H. P. Horse Nail Co. 29 Ch. D. 190, 54 L. J. Ch. 715, 52 L. T. N. S. 507, 33 W. R. 562; Ayscough v.. Bullar, 41 Ch. D. 341, 60 L. T. N. S. 471, 37 W. R. 529, 58 L. J. Ch. 474. See also Clay v. Oxford, L. R. 2 Exch. 54, 15 L. T. N. S. 286, 4 H. & C. 690, 15 W. R. 109, 36 L. J. Exch. 15, 12 Jur. N. S. 944. Compare Milligan v. Mitchell, 1 Myl. & C. 433, 7 L. J. Ch. 37, 3 Myl. & C. 72.

Canada.-Hogan v. Bactz, 1 West. L. Rep. (Yukon Ter.) 393; Ritchie v. Canadian Bank of Commerce, 1 West. L. Rep. (Yukon Ter.) 199. See also Yates v. Great Western R. Co. 24 Grant Ch. (U. C.) 495; Dunn v. McLean, 6 Ont. Pr. 97.

United States. Royal Ins. Co. v. Miller, 199 U. S. 353, 26 S. Ct. 46, 50 U. S. (L. ed.) 226; Consolidated Water Co. v. San Diego, 84 Fed. 369; Rogers v. Penobscot Min. Co. 154 Fed. 606, 83 C. C. A. 380; Kaiser v. General Phonograph Supply Co. 171 Fed. 432; Fisher v. Rutherford, Baldw. 188, 9 Fed. Cas. No. 4,823. See also Lewis v. Darling, 16 How. 1, 14 U. S. (L. ed.) 819. Alabama.-Berry v. Ferguson, 58 Ala. 314; Steed v. McIntyre, 68 Ala. 407; Bolman v. Lohman, 74 Ala: 507; McGhee v. Alexander, 104 Ala. 116, 16 So. 148; Weedon v. Jones, 106 Ala. 336, 17 So. 454; West End v. State, 138 Ala. 295, 36 So. 423; Hall v. Alabama Terminal, etc. Co. 152 Ala. 262, 44 So. 592. Arkansas.-Bloom v. Home Ins. Agency, 91 Ark. 367, 121 S. W. 293.

California. Polk v. Coffin, 9 Cal. 56; Cassin v. Nicholson, 154 Cal. 497, 98 Pac. 190. Florida.-Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 So. 722, 111 Am. St. Rep.

77.

Georgia. Napier v. Howard, 18 Ga. 437; Sears v. Odell, 66 Ga. 234; Grand Lodge Knights of Pythias v. Creswill, 128 Ga. 775, 58 S. E. 163. See also McHale v. Murphy, 73 Ga. 141.

Illinois. Chapin v. Curtenius, 15 Ill. 427; Jenks v. Vandolah, 29 Ill. App. 163; Blumenthal v. Huerter, 3 N. E. 425; Lee v. Casey, 269 Ill. 604, 109 N. E. 1062. See also Strean v. Lloyd, 128 Ill. 493, 21 N. E. 533, Indiana.-Hubler v. Pullen, 9 Ind. 273, 68 Am. Dec. 620; Frankel v. Garrard, 160 Ind. 209, 66 N. E. 687.

Kansas.-Black v. Missouri, etc. R. Co. 94 Kan. 28, 145 Pac. 903.

Kentucky-Hoofman v. Marshall, 1 J. J. Marsh. 64; Stevens v. Terrel, 3 T. B. Mon. 131. Maine.-Winslow v. Merrill, 11 Me. 127; Clark v. Anderson, 103 Me. 134, 68 Atl. 633. Compare White v. Curtis, 35 Me. 534; Ayer v. Gleason, 60 Me. 207.

Maryland.-Thillman v. Neal, 88 Md. 525, 42 Atl. 242.

Michigan. Prather Engineering Co. v. Detroit, etc. Ry. 152 Mich. 582, 116 N. W. 376, 15 Detroit Leg. N. 280.

Minnesota. See Clay County Land Co. v. Alcox, 88 Minn. 4, 92 N. W.. 464.

Mississippi. Stauffer v. Garrison, 61 Miss. 67; Rowzee v. Pierce, 75 Miss. 846, 23 So. 307, 65 Am. St. Rep. 625, 40 L.R.A. 402.

Missouri.Grigsby v. Bartin County, 169 Mo. 221, 69 S. W. 296; Merriman v. Springfield, 142 Mo. App. 506, 127 S. W. 122. Compare Chouteau v. Hewitt, 10 Mo. 131.

New Hampshire. See Dow v. Jewell, 18 N. H. 340, 45 Am. Dec. 371.

New Mexico.-Durrett v. Chicago, etc. R. Co. 20 N. M. 114, 146 Pac. 962.

New York.-Dutcher v. Slack, 1 Code Rep. 113, 3 How. Pr. 322. See also O'Brien v. Heeney, 2 Edw. 242; Van Epps v. Van Duesen, 4 Paige Ch. 64, 25 Am. Dec. 516; Peck v. Mallams, 10 N. Y. 509; Robinson v. Thomas, 131 App. Div. 894, 115 N. Y. S. 921.

North Carolina.-Green v. Deberry, 24 N. C. 344; Kron v. Smith, 96 N. C. 389, 2 S. E. 532; Mills v. Callahan, 126 N. C. 756, 36 S. E. 164. See also Arendell v. Blackwell, 16 N. C. 354; Reynolds v. Smathers, 87 N. C. 24; Walker v. Miller, 139 N. C. 448, 4 Ann. Cas. 601, 52 S. E. 125, 111 Am. St. Rep. 805, 1 L.R.A. (N.S.) 157.

Oregon.-Liggett v. Ladd, 23 Ore. 26, 31 Pac. 81; Hume v. Kelly, 28 Ore. 398, 43 Pac. 380.

Pennsylvania.-Druckenmiller v. Young, 27 Pa. St. 97; Kaul v. Lawrence, 73 Pa. St. 410; Harrison v. St. Mark's Church, 14 W. N. C. 387. See also Moore v. Hirsh, 30 Pa. Co. Ct. 7; Rangler v. Hummel, 37 Pa. St. 130. Compare Chamberlin v. Hite, 5 Watts 373; Carskadden v. McGhee, 7 Watts. & S. 140. Rhode Island.-Hazard v. Durant, 9 R. I. 602.

Tennessee.-Franklin v. Hays, 2 Swan 521; Gray v. Hays, 7 Humph. 588.

Texas. See Mott v. Ruenbuhl, 1 White & W. Civ. Cas. Ct. App. 599.

Vermont.-Wyman v. Wilcox, 63 Vt. 487, 21 Atl. 1103. See also Vermont Min. etc. Co. v. Windham County Bank, 44 Vt. 489.

Virginia.-Coffman v. Sargston, 21 Grat. 263; Belton v. Apperson, 26 Grat. 207. See also Hooper v. Royster, 1 Munf. 119; Ball v. Johnson, 8 Grat. 281; Holland v. Trotter, 22 Grat. 136; Yates v. Law, 86 Va. 117, 9 S. E. 508.

Utah. See Salt Lake County v. Golding, 2 Utah 319.

West Virginia.-See Welton Hutton, 9 W. Va. 339.

Wisconsin.-See Orton v. Knab, 3 Wis. 576. And see the cases cited infra in the subdivision, Application of Rule.

"The question as to when and whether such parties should be brought in as necessary to a complete determination of the controversy is within the sound discretion of the trial court." Bloom v. Home Ins. Agency, 91 Ark. 367, 121 S. W. 293. "It is the constant practice of the courts of chancery to allow amendments of bills by the introduction of new plaintiffs, where the purposes of justice require it." Coffman v. Sangston, 21 Grat. (Va.) 263. "The statute, section 657, Revised Statutes 1899, which is looked to as authority to require the court to allow the amendment to stand, has always received a most liberal construction by the courts of this state, and while they are not all in accord upon the question of permitting an amendment of the petition by adding the name of a new party, where the new party added is the real party in interest, yet the later decisions on this question are to the effect that it may be done where the ends of justice will be met thereby, and the defendant not injured." Merriman v. Springfield, 142 Mo. App. 506, 127 S. W. 122. "Order XVI. rule 2, provides that 'where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff or plaintiffs, the court or a judge may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person or persons to be added as plaintiff or plaintiffs upon such terms as may seem just.' " Duckett v. Gover, 6 Ch. D. (Eng.) 82, 46 L. J. Ch. 407, 25 W. R. 554. In Long v. Crossley, 13 Ch. D. (Eng.) 3SS, 49 L. J. Ch. 168, 41 L. T. N. S. 793, 28 W. R. 226, it was said! "The 13th rule of Order XVI. provides that the court may, at any stage of the proceedings, order 'that the name or names of any party or parties' (which I take to mean 'any person or persons') 'whether plaintiff's or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action, be added.' What is the question involved in the present action? Put broadly, it is the specific performance of the contract with the defendants. Is the presence of Mr. Long and his sister necessary in order to enable the court effectually and completely to adjudicate upon and settle this question? It appears to me that it is. It is said by Mr. North that, if they are added as COplaintiffs, the action must still fail. I think that at present I have nothing to do with that. The object of the provisions of the rules was, not that a party's case should be

Ann. Cas. 1916C.-38.

so framed as to succeed, but that it should be so framed that it can be adjudicated upon by the court, whether in his favor or against him. I therefore allow an amendment by adding the proposed co-plaintiffs, and by stating the plaintiff's title under the marriage settlement." In Ayscough v. Bullar, 41 Ch. D. (Eng.) 341, 58 L. J. Ch. 474, 60 L. T. N. S. 471, 37 W. R. 529, it was said by Lindley, L. J.: "The whole object to be obtained by amending and adding a co-plaintiff is to better the position of the first plaintiff. Now it appears to me that, when once you are satisfied that there has been a bona fide mistake, that the whole thing is honest, and that it is necessary in order to do justice to her and to the defendant that she should have this liberty to amend, such liberty ought to be granted."

The rule at common law was that an action at law could not be amended by adding parties plaintiff. Zukowski v. Armour, 107 Ill. App. 663; Ayer v. Gleason, 60 Me. 207; Chouteau v. Hewitt, 10 Mo. 131; Chamberlin v. Hite, 5 Watts. (Pa.) 373; Wood v. Metropolitan L. Ins. Co. 96 Mich. 437, 56 N. W. 8. "If by the common law amendments of the character made in this case were allowed, is it not obvious that much of the learning in the books on the subject of parties would have been useless, and instead of the labored essays of this branch of the law we meet with, the subject might have been disposed of of in а much more summary way. The consequence of not joining a plaintiff as a party, is shown in all the elementary works on pleading; but we have not been enabled to find where it is said, that the omission can be obviated by an amendment. If it were allowable, it would certainly have been some+ where suggested. There is nothing in the affidavit which was the foundation of the motion to amend, which might not be alleged by every one making such applications, and if it were allowed, rules sanctioned by the profession from time immemorial would be subverted. Mistakes in the names of parties have been amended; but to allow new plain. tiffs or defendants to be inserted in a decla ration by way of amendment, would be going a length wholly unprecedented. The fact that the plaintiffs in this case were a com. pany consisting of many individuals, does not vary the principle. The names of all the individuals composing a firm or company not incorporated, must be set forth with certainty in the declaration." Chouteau v. Hewitt, 10 Mo. 131. This rule still seems to obtain in at least one jurisdiction. Wood v. Metropolitan L. Ins. Co. 96 Mich. 437, 56 N. W. 8. In that case it was said: "In no case has it ever been contended that an amendment to bring in new parties in an

The

action at law could be allowed. court was in error in permitting this amendment to be made. When it appeared upon the trial that the plaintiff was not the sole owner of the claim, the court should have directed a verdict in favor of the defendant. Plaintiff could not maintain the action in her own name when it appeared that she was not the sole owner of the claim, and, under the most liberal construction of the statute of amendments, the court had no power to amend by bringing in another party plaintiff.”

An amendment of a cause of action by adding parties plaintiff may, in many jurisdictions, be made at any time before final judgment. Union Naval Stores Co. v. Pugh, 156 Ala. 369, 47, So. 48; Acquital v. Crowell, 1 Cal. 191; Polk v. Coffin, 9 Cal. 56; Price v. Goodrich, 141 Ill. App. 568; Gnuske v. Duffy, 177 Ill. App. 648; Edinger v. Heiser, 62 Mich. 598, 29 N. W. 367; Durrett v. Chicago, etc. R. Co. 20 N. M. 114, 146 Pac. 962; Hutchinson v. Reed, Hoffm. (N. Y.) 317; Hooker v. Norfolk Southern R. Co. 156 N. C. 155, 72 S. E. 210; Felty v. Deaven, 166 Pa. St. 640, 31 Atl. 333; Cimini v. Zambarano, 36 R. I. 122, 89 Atl. 295; Perkins v. Hays, Cooke (Tenn.) 189; Brazelton v. Turney, 7 Coldw. (Tenn.) 267. And see the reported case. See also Lee v. Casey, 269 Ill. 604, 109 N. E. 1062; Wilcox v. Hawkins, 10 N. C. 84. Compare McNabb v. Toronto Constr. Co. 19 Ont. W. Rep. 191, 2 Ont. W. N. 1086. Ross v. Carpenter, 6 McLean 382, 20 Fed. Cas. No. 12,072; Ingraham v. Dunnell, 5 Metc. (Mass.) 118. "It was not error or an abuse of discretion to allow an amendment at the trial, making an additional party plaintiff, so as to conform to the proof, even though six years had elapsed since the commencement of the suit." Gnuske v. Duffy, 177 Ill. App. 648. In Cimini v. Zambarano, 36 R. I. 122, 89 Atl. 295, it was said: "Under our statute courts are given broad powers in permitting amendments and in adding and striking out parties. Such powers have been exercised frequently after verdict and before the creation of the superior court by the Supreme Court after hearing upon petition for new trial. We see no objection to such action by the superior court after hear. ing upon motion for a new trial; provided amendments are permitted upon terms that shall protect the rights of adverse parties.”

Application of Rule.

IN GENERAL.

It is generally held that a creditor's bill may be amended by adding parties plaintiff. Richmond v. Irons, 121 U. S. 46, 7 S. Ct. 788, 30 U. S. (L. ed.) 864; Anderson, v. Superior Ct. 122 Cal. 216, 54 Pac. 829; McDougald v.

Dougherty, 11 Ga. 570; Perkins v. Berry, 103 N. C. 131, 9 S. E. 621; Stephenson v. Taverners, 9 Grat. (Va.) 398. Compare McLennan v. Montreal Bank, 17 West. L. Rep. (British Columbia) 489. In Maughan v. Blake, L. R. 3 Ch. (Eng.) 32, a plaintiff suing as a personal representative of a creditor's estate was permitted after discovering that the right to take out administration was in other persons, to amend her petition by making those persons coplaintiff's in a suit for the administration of a debtor's estate.

In Tillery v. Candler, 118 N. C. 888, 24 S. E. 709, an amendment adding a relator as a party plaintiff was held to be proper.

In Gannon v. Johnston, 40 Okla. 695, Ann. Cas. 1915D 522, 140 Pac, 430, it was held that an amendment adding the grantor as a party plaintiff was proper in an action by the grantee for the recovery of land. See to the same effect Augusta Mfg. Co. v. Vertrees, 4 Lea (Tenn.) 75.

In Livingston v. Marshall, 82 Ga. 281, 11 S. E. 542, it was held that a sworn bill might be amended by adding a new and proper party complainant, without swearing to the amendment.

PERSONS INTERESTED WITH ORIGINAL PLAINTIFF.

Where the plaintiff has an interest in the subject-matter of the suit, the petition may be amended, and other persons having a like interest may be joined as coplaintiffs. Murray v. Booker, 58 S. W. 788, 22 Ky. L. Rep. 781; Weinsteine v. Harrison, 66 Tex. 546, 1 S. W. 626; Sillings v. Bumgardner, 9 Grat. (Va.) 273. In Murray v. Booker, supra, a joint owner of the damaged property was permitted to be added as a party plaintiff by amendment in an action to recover damages resulting from the overflow of land. See to the same effect Cole v. Gilford, 63 N. H. 60. In McGhee v. Alexander, 104 Ala. 116, 16 So. 148, a bill to enforce a vendor's lien for unpaid purchase money was brought by the children of an intestate whose domicil was in Georgia. By the laws of Georgia a surviving husband shared equally with the children in the personal property of a deceased wife. It was held that an amendment adding the surviving husband of the intestate as a party , plaintiff was proper.

Parties for whose use or benefit an action is brought, or who have an equitable interest in the cause of action, may be added as parties plaintiff by amendment. Patterson v. Stapler, 7 Fed. 210; Glenn v. Black, 31 Ga. 393; Fidelity, etc. Co. v. Nisbet, 119 Ga. 316, 46 S. E. 444; Beall v. Hutcheson, 131 Ga. 66, 61 S. E. 1125; McIntyre v. Easton, etc. R. Co. 26 N. J. Eq. 425; Cousar v. Heath, 80

S. C. 466, 61 S. E. 973; Lanes v. Squyres, 45 Tex. 382; Galveston, etc. R. Co. v. House, 4 Tex. Civ. App. 263, 23 S. W. 332; Townsend v. Three Lakes Lumber Co. 67 Wash. 654, 122 Pac. 29. See also Chicago, etc. R. Co. v. La Porte, 33 Ind. App. 691, 71 N. E. 166; Reed v. Reed, 16 N. J. Eq. 248. Compare Cass v. McCutcheon, 15 Manitoba 667, 669. In Glenn v. Black, 31 Ga. 393, the action was brought by a sheriff for the use of certain judgment creditors to recover the purchase price of lots sold by him and an amendment adding other usees was held to be proper. The court said: “The plaintiff, at the trial term, moved to amend his declaration by adding other usees than those originally named in it. This amendment neither introduced a new cause of action, nor in any way varied the liability of the defendant. Technically speaking, it did not change the party plaintiff. The sheriff is the party plaintiff; with him the contract set out in the declaration was made. The usees are introduced to show, in the language of the statute, who is, or are, interested in the enforcement of the contract. If any party having an interest identical with the usees named in the declaration, be accidentally omitted, it would be proper and just that the omission be supplied by amendment. It was argued that there was, by this amendment, a misjoinder of plaintiff's. But there was, in reality, after the amendment, but one plaintiff, viz.: the sheriff.

There can be but one recovery for such failure, or refusal to comply with the terms of the sale, and as the Act provides that the sheriff shall sue for the use of the party interested, all persons so interested should be joined as usees. The money recovered, if any, goes into the sheriff's hands, and he is subject to the order of the Court, in distributing it among the usees. The amendment was properly allowed." In Townsend v. Three Lakes Lumber Co. 67 Wash. 654, 122 Pac. 29, an action brought to recover damages for the unlawful cutting and removal of timber from the plaintiff's land, an amendment adding as parties plaintiff the plaintiff's father and mother, who appeared to have some legal or equitable interest in the land, was held to be proper.

As to the right to amend a petition or complaint by adding or substituting a new plaintiff suing for the use of the original plaintiff see the note to Louisville etc. R. Co. V. Ramsay, Ann. Cas. 1913B 108.

It seems that an action brought by either husband or wife may be amended by adding as a party plaintiff the other spouse, where the latter has a legal or equitable interest in the cause of action. Pitts v. Powledge, 56 Ala. 147; Seipel v. Baltimore, etc. R. Extension Co. 129 Pa. St. 425, 18 Atl. 568; Hasbrouck v. Winkler, 48 N. J. L. 431, 6 Atl.

22; Shaffer v. Eichert, 132 Pa. St. 285, 19 Atl. 81; Fenton v. Lord, 128 Mass. 466; Sillings v. Bumgardner, 9 Grat. 273; Hedican v. Pennsylvania F. Ins. Co. 21 Wash. 488, 58 Pac. 574; Davis v. Seattle, 37 Wash. 223, 79 Pac. 784. See also Ainger v. White, 85 Vt. 446, 82 Atl. 666. "During the trial in the District Court, it appeared that the original plaintiff's wife was a part owner of the goods for the destruction of which the suit was brought, and it was moved to nonsuit the plaintiff because his wife did not join in the action, the court refused to nonsuit and permitted the wife to be joined as co-plaintiff. We think the amendment was within the authority conferred by the statutes. . . . Besides, it did not in the least affect the merits of the suit. The husband, being in possession of the goods as an owner, at the time of the trespass by the defendant, a stranger to the title, had himself the right of recovering all the damages resulting from the injury done." Hasbrouck v. Winkler, 48 N. J. L. 431, 6 Atl. 22. "The objection to the amended complaint is not well taken. By the amendment the wife was joined with the husband. It will be assumed that the court was satisfied to grant the amendment, whether leave was formally entered before or after the amended complaint was filed. The property destroyed was community property, and there can be no question but that the wife was a proper party to the action with her husband." Hedican v. Pennsylvania F. Ins. Co. 21 Wash. 488, 58 Pac. 574. In Davis v. Seattle, 37 Wash. 223, 79 Pac. 784, the court in holding that an action by a married woman against a city for injuries sustained by her in falling a defective walk could be amended by adding her husband as a party plaintiff, said: "The first contention of appellant which we will consider is that the court erred in allowing the amendment whereby the husband, B. W. Davis, was made a party plaintiff; appellant insisting that a married woman, residing with her husband, cannot, suing alone, recover damages for personal injuries sustained by herself, and that it is error to permit her, as such plaintiff, having no cause of action, to amend her complaint, and make her husband, the party having the cause of action, a party plaintiff, and to do so after the conclusion of the original plaintiff's evidence, and after she had rested her case on the trial. . . . While the respondent Alice J. Davis could not have recovered in this action, suing alone, did the court commit error in permitting the amendment whereby the husband, B. W. Davis, was made a party plaintiff, and afterwards, with his wife, recovered judgment? Section 4953, Bal. Code, provides: "The court may, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings, by add

on