166 P. 685 | Mont. | 1917
delivered the opinion of the court.
The original complaint in this action set forth that plaintiff became surety for defendant on a guardian’s bond required of him by the county court of Ward county, North Dakota; that, in consideration of it becoming such surety, defendant agreed to indemnify and save it harmless from all liability; that defendant failed in this behalf; that plaintiff was compelled to and did pay a judgment for $1,800 and costs and expenses, amounting to $177, recovered in an action brought against the guardian and this plaintiff; and that defendant has not repaid such amount, or any part thereof, though often requested so to do. At the time the action was commenced the plaintiff secured a writ of attachment to be issued. The trial court sustained a general demurrer to this complaint and granted plaintiff twenty days within which to amend. Before the amended complaint was filed, and within the twenty days allowed for the amendment, defendant moved the court to discharge the attachment. The motion was denied, and defendant appealed from the order.
It is the contention of appellant that, when the demurrer to the original complaint was sustained, the attachment should have been discharged, since there ivas not then any complaint in the action, and therefore nothing to support the attachment.
Under our Codes, attachment is a provisional remedy in a
No fault is found with the summons issued in this action; so
The observation in each instance was peculiarly pertinent as applied to the facts then under consideration. In the Plymouth Case a demurrer was sustained to the complaint, and plaintiffs, electing to stand on their pleading, suffered judgment to be taken against them, and appealed therefrom. It was then too late to amend, if by amendment a good cause of action could have been stated without changing the cause of action. In Kyle v. Chester the complaint disclosed on its face that it could not be amended to state a cause of action upon a contract; so that neither case is authority for the principle for which appellant herein contends.
In Clark v. Oregon Short Line R. R. Co., 38 Mont. 177, 99 Pac. 298, the decision of this court is aptly stated in the syllabus as follows: “An action is ‘commenced,’ within-the meaning of section 6457, Revised Codes, and the operation of the statute of limitations is thereby arrested, by filing a complaint to which a general demurrer is afterward sustained, provided the pleading is sufficiently substantial to allow of its being properly amended so as to fully state the same cause of action attempted to be stated in the first instance.” Upon principle, that case is in point here.
Under similar statutory provisions the supreme- court of California has held that the attachment should not be -dissolved unless the complaint cannot be amended to state a proper cause of action. The court said: “The claim that the complaint does not state a cause of action, and that the attachment should have been dissolved for that reason, cannot be sustained. Unless the complaint shows upon its face that the plaintiff has no cause of action with the help of an amendment, the attachment should not be dissolved. If the complaint is defective merely, and can
In view of our liberal statute of amendments (sec. 6589, Rev. Codes), and the provision in section 6683, Bevised Codes, permitting the affidavit or undertaking on attachment to be amended, the language of the California court above expresses our views of the rule which should prevail here.
Assuming, without deciding, that the court below was justified in sustaining the demurrer to the original complaint, it cannot be said that-it is made apparent that the same cause of action attempted to be stated, cannot be properly pleaded in an amended complaint. The order is affirmed.
'Affirmed.