124 P. 475 | Mont. | 1912
delivered the opinion of the court.
Plaintiff commenced this action on October 13, 1910, against the Oregon Nursery Company and the Bitter Root Valley Irrigation Company. Service was made upon each defendant; but on October 25, before the time for appearance had expired and before any appearance had been made by either defendant, the plaintiff filed an amended complaint and served a copy of it upon defendant Bitter Root Valley Irrigation Company, but did not serve the defendant Oregon Nursery Company. The Bitter Root Valley Irrigation Company interposed a demurrer to the amended complaint, which- was sustained. The plaintiff was
The amended complaint was filed by the plaintiff as a matter of right, under section 6588, Revised Codes. The time for appearance had not expired and neither defendant had appeared. By filing the amended complaint, the original complaint was
Section 6518, Revised Codes, provides that a copy of the original complaint need not be served upon every defendant where there are two or more residing in the same county, but the same
The question before us is not a new one. It has arisen in many instances, and the authorities are practically unanimous in
If plaintiff is put in a disadvantageous position, it cannot blame anyone but itself. There is not any reason apparent for filing the amended complaint; but plaintiff exercised a right given by statute and must assume the burdens which accompany it.
This judgment could not be based upon the original complaint, which has ceased to perform the function of a pleading; and it could not be founded upon the amended complaint, of which the Oregon Nursery Company did not have notice. In Linott v. Rowland above, the supreme court of California disposed of a like question as follows: “An amended complaint must be served on all the adverse parties who are to be bound by the judgment, whether it materially affects them or not (Elder v. Spinks, 53 Cal. 293), and, as the amended complaint herein was not served upon the appellant, there was no pleading upon which the judgment against him can be sustained.”
In Merrill v. Thompson above, the New York court said: “It has been held generally that, ‘where an amended pleading is served, it takes the place of the original pleading, and the action proceeds as though the original pleading had never been
The judgment and order are reversed and the cause is remanded, with directions to vacate the judgment.
Reversed and remanded.
Rehearing denied June 17, 1912.