
    Marlett, Receiver, Respondent, vs. Docter and another, Appellants.
    
      January 8
    
    February 5, 1895.
    
    
      Appeal from justice's court: Bringing in new party.- Terms: Abuse of , discretion.
    
    1. Where, on. appeal from justice’s court, the action is triable as if originally brought in the appellate court, that court may, under sec. 2830, E. S., at any stage of the action, amend the proceedings by directing a new party to be brought in.
    
      2. Where in such a case the answer in the justice’s court had set up the nonjoinder of a necessary party defendant, it was an abuse of discretion for the appellate court, on granting plaintiff’s motion to amend by bringing in such party, to impose costs of the motion on the defendants instead of on the plaintiff.
    
      Appeal from an order of tbe superior court of Milwaukee' county: E. N. Austikt, Judge.
    
      Reversed.
    
    Tbis action was commenced in a justice’s court on an account for goods sold. Tbe defendants set up a defense of tbe nonjoinder of a necessary party defendant, in that tbe-goods bad been sold to a copartnership consisting of tbe defendants and one Levy, under tbe firm name of Docter Bros. & Co. Tbe cause was tried in justice’s court, and resulted in a judgment for tbe plaintiff. Tbe defendants-appealed to tbe superior court. In tbe superior court it was ordered, on plaintiff’s motion, that tbe proceedings be amended by making Levy a party defendant, and that the-defendants pay $10 costs of tbe motion. Erom tbis order tbe defendants appeal.
    Eor tbe appellants there was a brief by Julius K Roehrr attorney, and James F. Trottman, of counsel, and oral argument by Mr. Trottman.
    
    They argued, among other things, that “ tbe general rule of law is that on appeal from a judgment rendered by a justice of tbe. peace tbe jurisdiction of tbe circuit court is limited to that of tbe justice.” Zitslm v.. Goldberg, 38 -Wis. 280. . While it was undoubtedly tbe intention of tbe legislature to place actions pending on appeal from justice’s court “ on tbe same footing as to their hearing- and determination as they would have been if originally commenced in tbe appellate court, and by so doing to enable that court to do complete justice between tbe parties” [Dressier v. Doris, 12 Wis. 58, 61), yet that can by no means-imply that tbe general rule above quoted is to be ignored to such an extent in tbis state as to allow tbe amendment of tbe justice’s court summons in tbe appellate court by adding a party defendant (especially on plaintiff’s motion), and so virtually by the amendment oreatí/ng a new action, of which tbe justice bad no jurisdiction and could not have except by discontinuing tbe pending action and issuing a new summons. Zitslee v. Goldberg, 38 Wis. 230; Maxey v. Pad-
      
      JtelcL, 2 Ill. 590; Lake v. Morse, 11 id. 587; Henekler v. County Court, 27 id. 38; Dodge v. Peojjle, 113 id. 491; Felt v. Felt, 19 Vis. 193. By the proposed amendment plaintiff seeks to deprive defendants of the right to retrial of the plea in abatement in the appellate court. The trial of the plea in abatement is a substantial right of defendants, which •cannot properly be taken from them. Darling v. Conklin, 42 Vis. 4S2. Moreover, our statute does not change the rule at common law which did not allow an amendment in any case by adding a defendant, after a plea in abatement. Chmnb&rlim, v. Noyes, 7 Hill, 145; Commission Co. v. Puss, 8 Cow. 122; Willimk v. Penwiek, 22 Vend. 608; Roberts v. Bates, 6 Adol. & E. 778.
    Eor the respondent the cause was submitted on the brief of Henry L. Buxton.
    
   NewMAN, J.

The county court of Milwaukee county, before the creation of the superior court, had exclusive appellate jurisdiction in all cases of appeal from justices’ courts in civil actions, and all general provisions of law relating to the circuit courts and to civil actions and proceedings therein are made applicable to that court. R. S. secs. 2465, 2466. By the act Avhich created the superior court, “ the jurisdiction and po wers of the county court of Milwaukee county in civil actions and proceedings” were transferred to and vested in the superior court of Milwaukee county. S. & B. Ann. Stat. sec. 2498c. This action was triable in the superior court in all respects the same as if it had been originally brought there. R. S. sec. 3768. The court had the power, at any stage of the action, to amend the proceeding by directing another party to be brought in. R. S. sec. 2830.

But the amendment could only be made upon such terms as may be just. This question of terms is often deemed an important matter. Wilson v. Eau Claire, ante, p. 47; Fel ton v. Hopkins, ante, p. 143. What terms are to be regarded, as just depends upon the facts of tbe particular case. It is-a matter within the discretion of the trial court. This court interferes with the exercise of that discretion only when it has been abused. Jones v. Walker, 22 Wis. 220; Morgan v. Bishop, 61 Wis. 407.

In this case the plaintiff found himself in error. He had omitted from his action a necessary party defendant. He was likely to be defeated unless the court should grant him indulgence. He should be allowed to correct his error, but on such terms as were just. It was just, of course, that the consequences of his error should fall upon himself. The defendants were in no fault about it. They had notified him by their answer of his error before costs had accumulated and while the error could readily have been corrected. If costs had accumulated it was by the fault of the plaintiff. Yet the court allowed the plaintiff to correct his error, and visited the consequences of it upon the defendants. It not only allowed the plaintiff to correct his error without imposing terms, but required the defendants to pay him a bonus. His error is made profitable to him. This is an abuse of discretion. The plaintiff should have been required to pay terms to the defendants.

By the Court.— The order of the superior court of Milwaukee county is reversed, and the cause remanded for further proceedings according to law.  