
    F. H. Penfield vs. James Wheeler and others.
    December 1, 1880.
    Order introducing a New Party. — Where a complaint stating no cause of action or ground of relief against a particular person is not so amended as to do so, an order making such person a party defendant, and requiring him to appear and answer such complaint, is erroneous.
    Appeal by defendant Balph J. Wheeler from an order of the district court for Washington county, Crosby, J., presiding, discharging an order to show cause, the nature of which is stated in the opinion.
    
      J. N. d I. W. Castle, for appellant.
    
      Comfort, Gregory d Comfort, for respondent.
   Berry, J.

This action was commenced against James Wheeler and W. H. H. Wheeler, alleged to be partners under the firm name of Wheeler Bros. These two defendants answered, alleging, among other things, that the partnership was composed of themselves and Balph J. Wheeler. Thereupon the plaintiff, upon an ex parte application to the district court, obtained an order that Balph be made a party defendant in the action, and that he appear and answer the complaint within twenty days after the service of such order upon him. Upon the application of Balph, specially appearing for that purpose, the plaintiff was ordered to show cause why the order making Balph a party, etc., should not be vacated. Upon a hearing, the order to show cause was discharged. As the complaint stands, it neither states nor assumes to state any cause of action or ground of relief against Balph. There is, therefore, no reason why he should be made a party to the action, or be required to appear therein or answer the complaint. If the plaintiff desired to bring him in, he should first have amended his complaint and summons, either before obtaining the order, or under its direction.

The order discharging the order to show cause is reversed, and the order making said Ralph a party, and requiring him to appear and answer, is vacated.  