
    Dexter A. Ballou v. Wilbur H. Hill and another.
    
      Declaration on joint award: When will not support judgment against single defendant: Effect of discontinuance as to one defendant. A declaration on an award made under a joint submission of A and B will not support a judgment against only one of them, where both were sued and suit was discontinued as against the other.
    Such a discontinuance as to one defendant, leaving the declaration standing as on a joint award and submission, puts an end to the entire suit. — Winslow v. Herrick, 9 Hich. B., 880.
    
    Unless, under an order allowing a declaration to be amended, the record furnishes the means of applying the order so as to show the precise effect of the amendment desired, an amendment must be actually made or the order will have no effect.
    When a declaration was upon a joint submission and award, and leave was granted to discontinue as to one defendant, and it was ordered that the pleadings 'and proceedings be amended in conformity with such discontinuance, and that the suit proceed against A as though it had been originally commenced against him alone, and no change was actually made in the declaration to show a sole obligation, it was held that no recovery could be had upon it against the defendant, A.
    Whether it would have been possible to make such an amendment as would have shown the award to be a sole obligation — Quaire?
    
      Heard April 27.
    
    
      Decided May 2.
    
    Error to Bay Circuit.
    A sufficient statement'of tbe case appears in the opinion.
    Grier, McDonell é Colh, for plaintiff in error.
    
      Marston & Hatch, for defendants in error.
   Campbell, Ch. J.

Suit was brought below upon au award against Dexter A. Ballou and Oren A. Ballou, alleged in the declaration to have been made on their joint submission.

In consequence of certain questions raised on the trial, a discontinuance was allowed to be and was entered before the judgment, as to Oren A. Ballou, and judgment was rendered against Dexter A. Ballou alone, without any further action than the recital in the order “that the proceedings and pleadings in this cause be and the same are hereby amended in conformity with such discontinuance, and that said suit proceed against Dexter A. Ballou, as though it had been originally commenced against him alone.”

We have no doubt that where an amendment is ordered or permitted, and is of such a nature that the record furnishes upon its face all the data for applying it, it may be considered as made, though no verbal changes are made in the pleadings, which are then to be read as if they had been actually amended.

In this case, however, if Dexter A. Ballou had been sued alone upon such a cause of action as is set forth in the declaration, the suit could not .be maintained against him.

The award is stated in the declaration to have been a joint one, made upon a joint submission. Upon such an award as set forth no sole action could be maintained. And a discontinuance against one defendant, leaving this joint award as the alleged cause of action, would be as fatal to the case as a discontinuance against both. — Winslow v. Herrick, 9 Mich. R., 380. The statute and rule allowing discontinuances will not permit any such result as this. It could only be done on such an amendment of the declaration as would distinctly show that the cause of action was in fact sole and not joint. Whether this can be done or not was a question that cannot be properly decided by us on a record that does not raise the point.

No use is made of the submission except as a mere explanation of how the award came to be made. Its terms are not set forth, and there are no allegations touching its execution. The declaration does not even give its date, with or without a videlicet. It appears but incidentally, the allegations being that defendants were indebted on a “certain award” made by virtue of a “certain submission.” Even the award is not' described except as to its supposed legal result.

There is nothing on the record from which any one can legally infer in what way the declaration should be amended, and, this being so, the amendment cannot be inferred. Until made, the suit appears of record as a joint suit incapable of severance; and the discontinuance, not being followed up by any amendment in fact, practically ended the case, and rendered any judgment erroneous. The judgment cannot be upheld upon the declaration.

Judgment must be reversed, with costs of both courts. The remedy of the plaintiffs below must be found in another action.

Cooley and Graves, JJ., concurred.

Christianoy, J., did not sit in this case.  