
    W. P. WARREN et al., Appellants, v. JOHN QUILL et al., Respondents.
    Action not Maintainable by Mabbied Woman Plaintiee without Pboper Avebments. In a suit by W. P. and Olive Warren for diversion of water, where it appeared on the trial that Olive was the wife of one Haven and the complaint was amended by substituting her true name but without adding any averments of her right to sue alone: Held, that the admission of evidence on such an amended complaint against defendants’ objection was error.
    Appeal from the District Court of the Second Judicial District, Ormsby County.
    This was au action by W. P. Warren and Olive Warren against John Quill and Timothy Oouley for damages for diversion of a stream of water from premises alleged to belong to plaintiffs in Ormsby County, and for an injunction to restrain future diversion. On tbe trial it appeared tbat tbe premises bad been originally conveyed to W. P. and Olive Warren, but tbat since tbat time and before tbe commencement of tbis suit Olive bad intermarried with Isaac Haven; upon tbe coming out of which fact plaintiffs ’ counsel asked and obtained leave to amend tbe complaint by making Olive Haven a party plaintiff instead of Olive Warren. Defendants excepted. Defendants then objected to tbe admission of any testimony under tbe amended complaint, for tbe reason tbat tbe action could not be sustained under tbe averments of tbe complaint as so amended. Their objection was overruled. They afterwards moved for a non-suit on tbe ground tbat tbe proofs did not support or conform to tbe allegations of tbe complaint, which motion was denied; and judgment was rendered and entered for plaintiffs, perpetually enjoining defendants from any further diversion of tbe stream described in tbe complaint.
    Defendants next moved for a new trial upon tbe grounds mainly tbat there was error in admitting any evidence on tbe trial after it was shown tbat Olive was at tbe commencement of tbe action'a married woman, cohabiting with her husband; and tbat there was error in allowing tbe action to proceed in tbe name of Olive Haven — tbe proof showing her to be a married -woman cohabiting-with her husband and it not being alleged or proved that the suit- concerned her separate property or was between herself and husband. The motion for a new trial having been granted, plaintiffs took this appeal from the order.
    
      Robert M. Clarice, for Appellants.
    
      Wm-. Patterson, T. D. Edwards, and Ellis & King, for Respondents.
   By the Court,

Whitman, C. J.:

A decree of injunction against respondents was set aside and a new trial granted; whence this appeal. No special reason for the order is given; but warrant therefor is found in error of law occurring at the trial and excepted to by respondents. The complaint was by W. P. and Olive Warren. On the examination of the former, it appeared that his co-plaintiff was at the time of suit brought and then a married woman, by name Olive Haven. On appellants’ motion, the complaint was amended by the substitution of the latter name and thus the trial proceeded, against the objection of respondents to the admission of evidence under the amended complaint, in which was no averment of Olive Haven’s right to sue alone. To the overruling of their objection respondents excepted. This was well taken.

The order granting a new trial is affirmed.  