27 Colo. 144 | Colo. | 1900
Lead Opinion
delivered the opinion of the court.
To this complaint the different defendants interposed their several demurrers, based upon numerous grounds not necessary here to mention, which were sustained, and the plaintiff took leave to plead over, and filed what is denominated in the record the first amended complaint. To conform to the court’s ruling it was in some respects different from the original complaint, but the object of the plaintiff in both was the same, viz, to recover a money judgment against Mrs. Slay-den, and impress the property with a lien to secure its payment.
The second amended complaint contained none of the allegations of the former pleadings relating to the so-called first cause of action for damages resulting from the breach of the contract of sale. It alleged the conspiracy and fraud in procuring from plaintiff the deed to his wife and the subsequent deeds that are set out in the so-called second cause of action, which both of the prior pleadings contained, and, because of that fraud, asked that the deeds be set aside and the plaintiff’s title be restored to him.
Certain technical reasons are urged by some of the defendants in support of the ruling below on plaintiff’s application to file the second amended complaint, which are, in the light of the facts, not tenable. True it is that it does not appear either that plaintiff gave to the defendants written notice of his application, or that an order of court was made giving him leave to amend. But the defendants were in court when the application to file was presented and interposed no objection of want of notice, and they cannot now be heard to say that notice was not given.
Strictly speaking, granting time to a party against whom a demurrer has been sustained to elect whether he will stand by the pleading attacked or amended, is not equivalent to an order permitting the filing of an amendment. But so far as a decision here is concerned, we may treat plaintiff’s tender
The appellant contends that the right to amend a complaint when a demurrer to it is sustained is absolute, and the number of such amendments is limited only by the number of demurrers sustained, while the defendants maintain that after the trial of an issue of law upon a demurrer to a complaint the plaintiff may amend only by leave of court, and upon such terms as are just. Sections 78, 74 and 75 of the civil code are germane. By section 78, after a demurrer, and before the trial of the issue of law therein, the pleading demurred to may be once amended, as of course, provided the party making the amendment does certain designated things. Section 74 reads:
“ When a demurrer is decided, either in term time or vacation, the court or judge shall immediately cause the decision thereof-to be entered in the record, and may proceed to final judgment thereon in favor of the successful party, unless the unsuccessful party shall plead over or amend upon such terms as may be just, and the court or judge may fix the time for pleading over and filing amended pleadings; and if the same be not filed within the time so fixed, judgment by default may be entered as in other cases.”
The plaintiff contends that the clause therein, “ unless the unsuccessful party shall plead over or amend,” is equivalent to granting to the unsuccessful party the absolute right of amending ad libitum, and the court, when requested, must make the necessary order, and that only the time and the
It is said, moreover, that it is contrary to good practice to permit objections to be made in advance to the filing of an amended pleading; that the court should allow it to be filed, and require the opposing party to move to strike, or to demur. Either method is proper. King v. Rea, 13 Colo. 69; Busch v. Hagenrick, 10 Neb. 415; Wheeler v. West, 78 Cal. 95; Turner v. Roundtree, 30 Ala. 706; Wade v. Clark, 52 Iowa, 158.
Withholding an expression of opinion upon it, yet for the purposes of this discussion only, we may assume that a cause, or causes, of action against Mrs. Slayden were well pleaded in plaintiff’s first two pleadings, had she been the only defendant. While a demurrer to an amended pleading must be determined from a consideration of that alone, and not with reference to the former pleading which it is intended to amend and supplant, yet when an amended complaint is tendered for filing, or is filed, the former pleading must be examined to see if the amendment is proper.
From an application of these principles, it follows that, had the court allowed the second amended complaint to be filed, it would have been reversible error. This is not a case which calls for the application of the general rule that a party may be awarded the kind of relief to which the facts entitle him, even though not to the specific relief asked. In the original, as in the first amended complaint, the plaintiff sued for damages; and it is clear that neither pleading contained a cause of action, unless it was one for damages, and that no equitable remedy was invoked, and no equitable relief could
In the second amended complaint no mention is made of the contract of sale. The fraud of defendants in getting title out of him is alleged, and the relief asked is the setting aside of the deed apparently divesting that title, and a decree directing a reconveyance to him. It is obvious that these two remedies are repugnant and inconsistent, and if the cause of action as theretofore pleaded was only single, it was upon an entirely different contract from the one attempted to be rescinded in the last complaint, and there would be a clear departure ; and if in the former pleadings the same cause of action (viz, fraud 'in procuring the deed) was also well pleaded, nevertheless the remedy chosen was damages in
A case exactly in point in principle is that of Marshall v. Gilman, 47 Minn. 131. The court says: “ The actions for rescission, and for damages for fraud or breach of warranty, are entirely distinct.” And it was held that where, as here, with full knowledge of the facts, the action, as brought, was for a rescission, alternative relief by way of damages cannot be recovered therein. The converse, of course, would be true, that if brought for damages a rescission would not be awarded.
Another point appellant makes is that the order overruling the demurrer to the first amended complaint is now open to review. While conceding the general rule to be that a party waives a ruling sustaining a demurrer to his pleading when he pleads over or amends, yet he says this has no application here, for he was not allowed to file a second amended complaint, and therefore got no benefit from his election.
This reasoning is specious, but not sound. Indeed, unless we treat the tendering of the second amended complaint as an application for leave to amend, or as the act of presenting an amended pleading in pursuance of previous leave, plaintiff has no standing at all, for an qrder of court is a condition precedent of the right to amend. By tendering for filing the second amended complaint, though it was refused, he manifested an intention to waive any error that may have been committed by the court in sustaining the demurrer to the first amended complaint, and waived the right to assign error thereto, just as clearly as though he had succeeded in procuring an order for its filing and afterwards the court had stricken it from the files, or sustained a demurrer to it.
It is not true, as claimed, that plaintiff was cut off of a right to amend. The court did not decide that some kind of an amendment might not be made, but only that the second amended complaint tendered was not proper; and when
There are other reasons why the judgment below was right, but to consider them in detail would unduly prolong the opinion, and for the reasons already given, the judgment must be affirmed, and it is so ordered.
Affirmed.
Rehearing
ON PETITION EOE EEHEAEINO.
In the argument in support of the petition for rehearing our conclusion as to the proper construction of the original and first amended complaints has been questioned, but no reason has been presented which leads us in any way to modify the same. Neither at the original hearing nor at this time have we failed to comprehend the theory of the case as advanced by counsel for the appellant, but we do not cdnsider it tenable.
The only point sought to be made, worthy of serious consideration, is that this court has not jurisdiction upon this review. The argument is, since we determined that in the original and first amended complaints the cause of action was, or the causes of action were, for breach of contract, and the object was to recover damages, and the action was dismissed, there is present none of the elements which, under the statute, invoke the jurisdiction of this court.
Our jurisdiction does not depend upon what was contained
We also said, and repeat, that when plaintiff tendered for filing, or filed, his second amended complaint, all former pleadings were as if they had not been filed, save only for the purposes of comparison, and we held that our examination of the former pleadings was made solely for the purpose of enabling us to determine whether the second amended complaint tendered for filing was proper in this action. We demonstrated, as we think, in the original opinion, that it was a clear departure from the former pleadings in that, while their object was to recover damages for a breach of contract, its object was to rescind the contract and recover possession of real estate. We deem it unnecessary to repeat the argument by which the conclusion was reached. It is only necessary now to say that the test of our jurisdiction upon this review is whether or not there is present in the case as made by the second amended complaint any of the elements which, by the statute, must be present in order to entitle the defeated party to a review in the supreme court of the judgment against him.
As to this there can be, and is, no question. The cause of action, as set forth in this last pleading of the plaintiff, clearly and confessedly involves a freehold, and it is from the judgment of the district court refusing to permit this complaint to be filed, or what is its equivalent, striking it from the files, and dismissing the action; that this appeal is
Satisfied, as we are, from a careful examination of the record that in the second amended complaint there was a clear departure from the cause or causes of action theretofore relied upon, it should not have been filed over the objection of the defendant. It is quite immaterial what reasons the trial court gave for its rulings. If they were right and can be maintained for any reason, they should not be disturbed.
The petition for rehearing should be denied, and it is so ordered.
Rehearing denied.