#### John Gowan et ux. *v.*L. W. Stevens.

Special Term at St. Johnsbury, April, 1910.

Present: Rowell, C. J., Munson, Watson, Haselton, and Powers, JJ.

Opinion filed May 7, 1910.

*Pleading*— Misjoinder *of Plaintiff*— Remedy *by Amendment Under P. S. 1498*— Scope *and Effect*— Nonsuit *of One Plaintiff and Judgment for the Other.*

A nonsuit is a judgment based on the process or pleading, to which the plaintiff who is nonsuited is as much a party after that judgment as before; therefore, P. S. 1498, permitting an amendment of a process or pleading by allowing the court to “strike out the name ' of a party improperly joined as plaintiff, upon such terms as it thinks proper,” does not authorize the curing of a misjoinder of two plaintiffs, which was first revealed by the facts found, by allowing one of them to become nonsuited, and rendering judgment for the other.

Where a misjoinder of plaintiffs is not disclosed by the pleadings, but is first apparent from the facts found, it is ground for nonsuit on the trial.

On judgment of nonsuit in an action of replevin against an officer for goods by him attached in a suit against one of the plaintiffs, where it appears that before the return day of that suit the claim of the attachment creditor was satisfied, and on the return day thereof the suit was entered settled and discontinued, no order for the return of the property will be made, as, regardless of its ownership, or of whether it was attachable, defendant is not entitled to its return.

*359Replevin. Plea, the general issue. Trial by court at tbe October Term, 1909, Essex County, *Taylor,*J., presiding. After the court made its findings of fact, and at tbe request of plaintiff, Kitty Gowan, judgment of nonsuit was entered against ber, and thereupon judgment was rendered against tbe defendant in favor of tbe other plaintiff. Tbe defendant excepted. Tbe opinion sufficiently states tbe case.

*S.*W. *Blake*for tbe defendant.

*George L. Sunt*for tbe plaintiffs.

Watson, J.

Tbe property in question was attached by tbe defendant, a deputy sheriff, in a suit brought to collect a- debt against tbe husband, and in tbe suit at bar tbe same property is replevied, the husband and wife joining as plaintiffs. It is found that tbe larger part of tbe property, both in number of articles and in value, belonged to tbe wife; that some of it was acquired by ber before marriage, and tbe rest, after marriage by gift from ber husband. By statute all articles of tbe first class are held by ber to ber sole and separate use, and are not liable for tbe debts of tbe husband. P. S. 3040. Whether on tbe facts presented tbe articles of tbe second class are held by ber in tbe same way as against tbe attaching creditor of tbe husband it is unnecessary to decide.

Tbe rest of tbe property attached belonged to tbe husband, and some of it at least comes within tbe statutory exemptions. None of tbe goods replevied are tbe joint property of tbe plaintiffs..

After finding tbe facts tbe court below in its discretion, against tbe objection of tbe defendant and subject to bis exception, allowed tbe plaintiff wife to become nonsuit on tbe ground that she was improperly joined as plaintiff, and then rendered judgment for the plaintiff husband to recover. To be sustainable, this action of tbe court must be within its power of amendment under section 1498 of tbe Public Statutes, by which it may “strike out the name of a party improperly joined as plaintiff, upon such terms as it thinks proper.” So tbe question is, whether under this clause of that section the party misjoined as plaintiff may be nonsuited after facts found, and then judgment rendered in favor of tbe remaining plaintiff.

*360The law giving such power of amendment, as first enacted (Laws of 1890, No. 25), by its terms has reference only to civil process or pleading, and it has no other reference under the revision of 1906. The court may thereby eliminate from the process or pleading the name of a party thus improperly joined, without rendering judgment for or against him, to the end that the process or pleading may be in such form thát final judgment on the merits may be rendered between the proper parties to the suit. A nonsuit is a judgment based upon the process or pleading, and when rendered the person nonsuited remains a party to the process or pleading the same as before. As far as he is concerned the action may be ended, but the amendment essential to remedy the fault of misjoinder has not been effected. The exception therefore must be sustained.

The case then stands on the facts found, with thé plaintiffs misjoined; and since the objection does not appear on the face of the pleadings it is a ground of nonsuit on the trial. 1 Chitty PI. 66.

Before the return day of the suit in which the property was attached the claim of the attaching creditor was satisfied, and on the return day that suit was entered settled and discontinued. In these circumstances, regardless of the ownership of the property, or of whether it was attachable or not, the defendant is not entitled to a return of it and no order therefor will be made. *Smith Woolen Machine Co.*v. *Holden,*73 Vt. 396, 51 Atl. 2.

*Judgment reversed, and judgment of nonsuit.*