dissenting.
I dissent. In my opinion the writ heretofore issued should be dissolved and dismissed. The granting of the motion made by the State Highway Commission will only harass the defendant farm owners, Ralph F. Green and Isabel Green, and cause them more grief and expense.
There is no provision in our law to allow an amendment of complaint especially in an eminent domain action as hereafter an award has been made and paid over to defendants. In order to do so this court is usurping the duty and responsibility of the legislative branch of our government and writing a new procedure. The suggested amendment makes a new ease. The majority, by its action here, is permitting the Highway Commission to capitalize on its own negligence by their failure to examine the County Clerk’s records at the time of filing their lis pendens and complaint and penalizing the farm owners, Mr. and Mrs. Green. The law helps the vigilant before those *367that sleep on their rights as the highway commission did here for over a year, R.C.M. 1947, section 49-119; no one should suffer for the act of another, R.C.M. 1947, section 49-112; and no one should take advantage of his own negligence.
In any event, the statute given us by the Legislature provides the lawful procedure in such cases and negatives the procedure attempted and countenanced by the majority opinion. The Highway Commission by its petition here asserts that unless this court order the District Court to now, at this late date, being over a year since filing its complaint, allow it to amend its complaint by bringing in another defendant, that its title to the property it is condemning, will be defective.
In such event our Legislature has provided a legal and lawful procedure for that particular purpose by enacting R.C.M. 1947, section 93-9916, which provides:
“If the title attempted to be acquired is found to be defective from any cause, the plaintiff may again institute proceedings to acquire the same, as in this chapter prescribed Emphasis supplied. This section is plain and needs no interpretation; it means just what it says and it is our written law and again negatives any court-made procedure.