Dissenting opinion by
Mr. Justice Mitchell :, I am unable 'to concur in this judgment. It sanctions a change which is not an amendment at all, but a substitution of a new cause of action against a new party, a perversion of the statutes of amendment going far beyond any precedent however liberal. It is no answer to say that the count}'- appeared ánd thereafter is estopped from denying that it was a proper party. It had no choice in the matter. It was served with an alias summons, and pleaded under protest after the court had overruled its objection to being made party by the so-called amendment. These facts appear on the face of the record and are brought before us by the second assignment of error. The appellant may be liable for damage done to plaintiff but that fact should be ascertained by a proper action properly brought against it.