104 S.W. 829 | Ct. App. Ind. Terr. | 1907
(after stating the facts as above). The plaintiff in error has filed eleven assignments of error, as follows: “(1) The court erred in overruling the motion of the defendant McFadden, and of R. S. Cate, as special administrator, to strike from the files plaintiff's amended complaint, to which ruling of the court defendants then and there excepted. (2) The court erred in permitting plaintiff to file its amended complaint, which introduced into this action a cause of action wholly distinct and separate from the original cause of action, which ■said cause of -action has arisen since the commencement of this suit. (3) The court erred in allowing plaintiff to introduce in evidence a certified copy of a judgment rendered in the territory of Oklahoma in favor of the plaintiff and against the defendants Cassidy and McFadden. (4) The court erred in instructing the jury, peremptorily, to find their verdict in favor of the plaintiff in the sum of $1,465. (5) The court erred in overruling the motion of the defendants asking that the court
Plaintiff in error says: “In the argument of this case, it appears to us unnecessary to take, up in detail each assignment of error. 'There are three points upon which a reversal of the judgment in this case is asked for: (1) The first, and upon principle the most important of these points is, that the trial court erred in allowing the plaintiff to obtain judgment upon a cause of action wholly different from that upon which this case was instituted, and in allowing plaintiff to so amend his complaint as to declare upon a judgment, instead of upon the open account originally sued on herein. (2) The second proposition is that if such a substitution of a cause of action should, in the ojiinion .of this court, be permissible, as against the defendant, such .substitution would be surely error as to the surety on a dissolving bond given at a time when the suit was upon open account, and a cause where the statute has provided that judgment may be rendered against such .surety in the principal action without notice. (3) The .court erred in holding that this cause .stood for trial at the February term of court.” Counsel
In Freeman on Judgments (4th Ed.) § 215, it is said: “The cause of action thus established and permanently attested is said to merge into the judgment establishing it, upon the same principle that a simple contract merges into a specialty. Courts, in order to give a proper and just effect to a judgment, sometimes look behind to see upon what it was founded, just as they would, in construing a statute, seek to ascertain the occasion and purpose of its enactment. The cause of action, though it may be examined to aid in interpreting the judgment, can never again become the basis of a suit between the same parties. It has lost its vitality. It has expended its force and effect. All its power to sustain rights and enforce liabilities has terminated in the judgment or decree. It ‘is drowned in the judg
The question presented is whether the amendment substituted another cause of action for that originally stated. “An examination of the original complaint discloses an evident intention on the part of the pleader to declare -upon an account
In the case of Barnes vs Gibbs, 31 N. J. Law, 317, 86 Am. Dec. 210, the court sajrs: “Nor does there seem to be much weight -in the argument, ab inconvenienti, which was pressed upon the attention of the court. It is true that meritorious creditors might sometimes find it to their advantage to pursue their debtors with simultaneous suits in two' or more states. But even in such case it cannot escape observation that, the course suggested as beneficial to the creditor savors something of harshness, if not oppression, to the debtor. Practically, he is vexed twice or oftener for the same cause. And, on the other hand, when the claim sued on is unfounded, and a just .defense exists, the right to institute co-existent suits in different jurisdictions, founded in the same subject, becomes an instrument of oppression, which it would be by no means prudent to place within the reach of rapacity or vindictiveness. The maxims of common justice seem to require that the judg
In Swedish-American Nat. Bank vs Dickinson Co., et al., 6 N. D. 222, 69 N. W. 455, 49 L. R. A. 285, the court say:
*557 “The sole question of law at issue on this appeal relates-to the extent of the power of the District Court to allow a plaintiff to file a supplemental complaint. The cause of action set forth in that pleading in this case were promissory notes.- While this-suit was pending the plaintiff recovered in the state of Minnesota, against the same defendants, a judgment upon the identical-causes of action embraced in the complaint. * * * It has long been the doctrine that a final judgment merges, within the jurisdiction in which it is rendered, the original cause of action on which it is founded. 1 Freem. Judgm. §§ 215-217; 15 Am. & Eng. Enc. Law, 336. This 'rule applies in-this country to judgments rendered in the different states,, on the ground that, under 'the provisions of the federal Constitution, they are - practically assimilated to domestic judg-ements. 1 Freem. Judgm. § 221; 15 Am. & Eng. Enc. Law, 341; Barnes vs Gibbs, 31 N. J. Law, 317, 86 Am. Dec. 210; Bank of U. S. vs Merchants’ Bank of Baltimore, 7 Gill (Md.) 415; Bank vs Wheeler, 28 Conn. 433, 73 Am. Dec. 683; Rogers vs Odell, 39 N. H. 452; McGilvray vs Avery, 30 Vt. 538; Child vs Powder Works, 45 N. H. 547; 2 Black, Judgm. § 864. * * * From these elementary principles to which we have referred, we are forced to deduce the conclusion that, the moment the-judgment was recovered in Minnesota, the plaintiff’s causes of' action on the notes sued upon were utterly extinguished. This judgment would, if pleaded by the defendants,, constitute a complete bar to the further prosecution of the action. 15 Am. & Eng. Enc. Law, 341, note 5; Rogers vs Odell, 39 N. H. 452; McGilvray vs Avery, 30 Vt. 538; Bank vs Wheeler, 28 Conn. 433, 73 Am. Dec. 683; Child vs Powder Works, 45 N. H. 547; Bank of U. S. vs Merchants’ Bank of Baltimore, 7 Gill (Md.) 415. How the plaintiff can gain any advantage by setting forth-in its own pleading facts which, if averred in the answer, would constitute a perfect defense to the further.prosecution of the suit, is beyond our comprehension. * * * But in*558 the case at bar the plaintiff does not seek to enlarge its relief, or to. alter, the character thereof. It merely asks that' it be allowed to obviate a-perfect defense to its causes of action on the notes, and recover the same money judgment upon an entirely distinct cause of action, not in existence when it brought the suit, but arising-subsequently to its commencement. No adjudication, no statute, no principle of law or equity, can be found to sustain its contention in this behalf. In interpreting our statute permitting the filing of supplemental complaints, we must fall back upon the settled practice in chancery before the adoption of the Code. The statute embodies the rule of procedure in equity. It has merely made applicable to actions at law, as well as' suits in equity, the rules prevailing in chancery with respect to supplemental pleadings. * * * In this connection it is well to state the other general rule on the subject of supplemental bills in equity. It is a rule of limitation of power. The plaintiff cannot, by supplemental pleading, bring into the action a distinct cause of action arising since the beginning of the suit. * * ' * The ground work of this doctrine is that the plaintiff cannot recover on a cause of action which does not exist when he sues. * * * Indeed, this practice of changing the cause of action has never been sustained even in a case where the new cause of action was in existence when the suit was commenced. Much less should this be allowed when the cause of action sought to be made the basis of the suit by supplemental complaint arbse during the pendency of the case. Milner vs Milner, 2 Edw. Ch. 114; Eastman vs Water Power Co., 17 Minn. 48 (Gil. 31); Prouty vs Railroad Co., 85 N. Y. 272-275; Buchanan vs Comstock, 57 Barb. 583; Wattson vs Thibou, 17 Abb. Prac. (N. Y.) 184; Cohn vs Husson, 67 Home Prac. (N. Y.) 461, 462; Gleason vs Gleason, 54 Cal. 135; Bull vs Rothschild, 52 Hun, 611, 4 N. Y. Supp. 826; Tiffany vs Bowerman, 2 Hun, 643-646. In this last case the court said: ‘It seems only necessary to state the facts,*559 in order to show that the motion for leave to file this supplemental complaint for such a purpose should have been at once denied. A supplemental complaint must be consistent with, and in aid of, the case made bjr the original complaint. A new and substantive cause of aetion cannot be set up, by way of supplemental complaint, as a ground of recovery; more especially a cause of action to which the plaintiff was not entitled when he commenced- the action.' * * * The doctrine as it was enunciated by the vice chancellor in Milner vs Milner, 2 Edw. Ch. 114, has never been questioned, and is undoubtedly sound. The vice chancellor said: ‘The question to my mind is whether the complainant, upon her intending to rely upon the new facts, must not file an entirely new bill. I consider it not a case for amendment or supplemental bill. The latter is generally filed to continue the original suit, or is in its matter, directly connected with it, and because of the original bill being somewhat defective. But here there is a new substantive cause of action; upon which a decree can be had without connecting it with" the original bill. The complainant is here wanting to go upon entirely new ground; in fact, to riialce a new case. If this is to be done, it must be by a dismissal of the present bill, and filing of a new one. I must refuse this motion. * * *’
“But it is urged that there is authority for the proposition that a supplemental complaint may embrace such matters asare sought to be incorporated in the complaint in the case at bar, and that such authority should be followed. To sustain this claim, the case of Jenkins vs Bank, 127 U. S. 484, 8 Sup. Ct. 1196, 32 L. Ed. 189, is cited. But in our opinion that case is plainly distinguishable from the case now before us. That action was instituted to foreclose a lien upon certain property pledged as collateral to a debt. Pending this action, a decree was rendered in another case which so adjudicated the amount due upon the claim to secure which the collateral security had been given as to preclude the relitigation of that question in the*560 pending suit. The Supreme Court of Illinois and the Supreme-Court of the United States both held that it was proper.to incorporate in a supplemental bill the fact of the rendition of this decree. But it is obvious that there is no parallel between that case and the action which is before us. The cause of action in that case was not in the indebtedness, but the lien. The object of the action was to foreclose that lien. The plaintiff did not seek to change the object of the action, nor did he attempt to incorporate in his supplemental bill a new cause of action. The' lien constituted his sole cause of action before the supplemental bill was filed, and it still remained his sole cause of action after the decree had been rendered, and after the fact that it had been rendered "was brought into the case by the supplemental bill. The action was not originally brought upon the indebtedness, but it was founded upon the lien, and this continued to be the cause of action after the supplemental bill had been filed. The lien was not divested by the decree which conclusively established the amount due. 2 Freem. Judgm. §§ 229, 230, and cases cited. In both of these courts the distinction was made which we here outline. Had the action been, not to foreclose a lien, but to recover a money judgment on the indebtedness, it is apparent from the language of both these tribunals that their decisions would have been different. The Illinois Supreme Court said on this point, at pages 470 and 471, 111 Ill. (Jenkins vs Bank): ‘We do not consider the supplemental bill as introducing a new cause of action. The indebtedness is the same. The evidence of it at the time of filing the original bill in this case consisted of notes from Walker to the bank. The notes have since, as said, become merged in the Wilshire decree. There has been, then, a change in the evidence of the indebtedness, from notes to a decree upon them. That is all. The collaterals sought to be foreclosed by sale of them were pledged for the payment of the indebtedness. A decree upon the notes, and the running of the statute of limita.-*561 tions against the decree, is not any payment of the indebtedness. The simple effect is that the statute is a bar to a suit upon the decree. The collaterals may be held until the indebtedness is paid according to the terms of the pledge. We do not consider that there has been any new suit brought upon the decree, but that, there is, under the supplemental bill, the assertion of the right to claim the benefit of the Wilshire decree as res adjudicata, and that the statute of limitations set up is not a bar to that right/ Anti in the federal Supreme Court the same distinction is stated in the following language: ‘In support of this proposition, it is argued, on behalf of the plaintiff in error, that the supplemental bill set out, and sought a recovery upon, a cause of action distinct from that stated in the original bill. The original bill prayed for a decree against Walker upon his notes held by the bank, and for the satisfaction thereof a sale of the property held as security therefor. During the pendency of that bill, precisely the same matters were put in issue in the Wilshire suit between Walker and the bank, and in that suit a decree was rendered finding the amount due. That decree in the Wilshire suit stands unreversed, and operates as an estoppel by waj' of res adjudicata between the parties. B}r way of proof or in pleading, it would be good as a bar in any subsequent suit between the same parties upon the same issues. Having been rendered after the institution of the present suit, it was competent for the complainant to bring it forward, by a supplemental bill, as conclusive evidence of the amount due, for which it was entitled to take a decree, and as a complete answer to the defense set up by the plaintiff in error, as the assignee of the bankrupt, to the relief prayed for in the original bill, and to the relief sought by the cross-bill. It was strictly now matter arising after the filing of the bill, properly set up by way of supplemental bill, in support of the relief originally prayed for. It can in no sense be considered as a new cause of action. It was not a bill to enforce the decree, nor was the*562 complainant obliged to rely upon it as the sole ground of recovery, on the ground that the original cause of action had become merged in it. If the notes were merged in the decree, it was •simply a change in the nature o'f the evidence to support the complainant’s title to relief. The indebtedness remained the same, and the equity of the complainant to a foreclosure and sale of the securities remained unchanged.’ In fact, the courts in that ease were but applying the familiar rule that the holder of collateral security may, in the absence of a statute to the contrary, recover a personal judgment upon his claim, and thereafter foreclose his lien notwithstanding such judgment. See 1 Freem. Judgm. §§ 229, 230; Bank vs Brown, 112 Ind. 474, 481, 482, 14 N. E. 358. The cause of action in such a foreclosure suit being the lien, the recovery of a judgment on the debt, before or after the commencement of the foreclosure action, does not create a new cause of action; does not extinguish the old. The original lien continues in existence, securing the new evidence of the debt the same as it did the old. By the recovery of a judgment, the cause of action is not wiped out. The only effect is to conclusively establish the amount which the lien secures. It is a significant fact that in New York the Legislature has, in express terms, incorporated into the statute regulating the filing of a supplemental complaint a provision that the plaintiff may in this way bring into the case ‘the judgment or decree of a competent court, rendered after the commencement of the action determining 'the matters in controversy or a part thereof.’ Code Civ. Proc. N. Y. § 544. It is evident that in New York the law was considered to be settled the other way, in the absence of an explicit statute on the point. Our Code merely permits the plaintiff to set up in his supplemental bill ‘facts material to the case.’ Rev. Codes, § 5301. What in this action is ‘the case’ of the plaintiff as his suit was originally brought? The answer is obvious. It is the cause of action set up in his complaint. That con*563 stitutes his case. Another and entirely distinct cause of action does not constitute his case, as it appears in his original pleading. As we have already seen, the decisions are unanimous to the effect that, under just such a statute as ours, the plaintiff cannot; by supplemental complaint, introduce a new and distinct cause of action.
“The argument of hardship does not appeal to us with any force. It is true that in this case, and it will likewise be true in many other cases, a refusal to allow the subsequent recovery of the judgment to be set up in a supplemental complaint will result in the loss of priority of lien upon property secured by an attachment in the action, because the plaintiff will be compelled to dismiss his action upon the claim, and bring a new suit upon the judgment itself. This same argument was adv.anced in Bank vs Wheeler, 28 Conn. 433, 73 Am. Dec. 683, against the proposition that the.effect of the recovery of a judgment in one state was to extinguish the cause of action in every other state. It will be observed that the precise question here presented was there involved, for if the judgment extinguishes the original cause of action, and creates a new cause of action, there is no logical escape from the conclusion that the suit cannot be kept alive by supplemental complaint. On this point of hardship the court says: ‘The plaintiffs urge the inconvenience arising from holding the judgment in New York to be a defense in the present suit, in consequence of the loss of the security obtained by attachment in the latter. We are not, however, at liberty to impair the effect which the Constitution and laws of the United States give to judgments rendered in the several states, although it may be attended with inconvenience, or even apparently unjust consequences. The remedy is elsewhere. When suits are pending in different states upon the same cause of action, the plaintiff must elect in which he will proceed to final judgment.’ And in two other cases, in which it was held that the recovery of a judgment*564 upon the claim sued for was fatal to the further prosecution of the action, it appears that the attachments had been issued and levied, and that, of course, the liens secured thereby would be lost. Bank of U. S. vs Merchants' Bank of Baltimore, 7 Gill (Md.) 415; Child vs Powder Works, 45 N. H. 547, see pages 549, 550. * * * It frequently happens that the judgment rendered is not a personal judgment in more than one state; jurisdiction being acquired in other states solely over property by attachment or garnishment. A judgment purely in rein would not merge the cause of action on the original claim, and therefore would not constitute a bar to an action thereon in another jurisdiction. Whittier vs Wendell, 7 N. H. 257; Fitzsimmons vs Marks, 68 Barb. (N. Y.) 333; Rangely vs Webster, 11 N. H. 299; 1 Freem. Judgm. §§ 218, 219. In many cases there will therefore be no hardship to the creditor.”
In 1 Enc. of Pl. & Pr. p. 550, it is said: “Granting leave to amend by changing the cause of action or defense is not erronebus unless substantial rights of the adverse party are affected thereby. Stevens vs Matthewson, 45 Kan. 594, 26 Pac. 38, where all the costs were imposed on the defendant, and a continuance granted, the court holding, however, that this conclusion is based upon the language of the statute of jeofails. No. 140, Code Civ. Proc.” Section 140 of the Kansas Code of Civil Procedure is as follows: “The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.” But we have no statute of such character in this jurisdiction.
In Allen vs City of Davenport, 115 Iowa, 20, 87 N. W. 743, the court said: “By section 3641 of the Code either party is allowed ‘to make a supplemental petition, answer or reply alleging facts material to the case which have happened or have come to his knowledge, since the filing of the former
Section 5084, Mansf. Dig-., under which the amendment in the case at bar was allowed, is as follows: “The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint, answer or reply, alleging facts material to the case occurring after the filing of the former complaint, answer or reply” — and is substantially the same as the statute construed in the foregoing authorities.
In Schwab vs Schwab, 93 Md. 382, 49 Atl. 331, 52 L. R. A. 414; the court said: “It is well settled, however, that the supplemental Hill being merely an addition to the original bill, and the two constituting but one record, the latter must be consistent with the former, and its allegations must be, germane thereto, and must be supplemental in their nature and not independent or subsequent, and the new matters must not change the rights or interest of the parties. * * * Where the facts occurring subsequent to the filing of the original
In Meyer vs Berlandi, 39 Minn. 438, 40 N. W. 513, 1 L. R. A. 777, 12 Am. St. Rep. 663, the court-said: “If an original complaint is wholly defective, and there are no grounds for proceeding upon it, it cannot be sustained by filing a supplemental one founded on matters which have subsequently taken place. A supplemental -complaint can only enlarge or change the kind of relief to which a party may be entitled, where a cause of action exists at the time of tlie commencement of the action. Lowry vs Harris, 12 Minn. 255 (Gil. 166).”
The second proposition discusses the seventh, eighth, and eleventh assignments of error, and alleges error in admitting in evidence the dissolving bond signed by the National Surety Company as surety, and rendering judgment against said National Surety Company, and overruling motion in arrest of judgment filed by said company. The action of the court in directing a verdict for plaintiff upon the amended complaint, and then in sustaining the attachment in this case, presents a novel condition for the consideration of this court. The affidavit for attachment is as follows: “Affidavit for Attachment. The plaintiff, Saline County Bank, states that the claim in this action
The third proposition embraces the ninth assignment of error. The revivor is regulated by section 5239, Mansf. Dig., which is as follows: “If the order is made by the consent of the parties, the action shall forthwith stand revived; and, if not made by consent, the order shall be served in the same manner as a summons-upon the party adverse to the one making the motion. And at the first term, commencing not less than ten days after such service, the party on whom it is made may show cause against the revivor; and,, if sufficient cause is not then shown, the cause shall stand revived. ” It thus appears that when not revived by consent it shall be served in the same manner as a summons is served. When a summons is served, it is provided, in section 5046, Mansf. Dig., as follows: “The-defense to an action at law shall be filed on or before the third day of the term: First. When the summons has been served ten days before the commencement of the term in the county in which the action is brought, or in an adjoining county.” We have not been furnished any authority that holds that “at the first term, commencing not less than ten days, after such
In discussing the assignments of error filed by plaintiff in error, the defendant in error says: “Counsel for the plaintiff in error have urged 11 assignments of error against the judgment rendered by the court below. These 11 assignments are subdivided in the argument into three propositions, and in counsel’s brief have been presented under three subdivisions.” Then says there can be no controversy about this rule that the judgment merges the original cause of action stated in the complaint. Then says: “The 'Only question of importance involved in the case is found in the second proposition presented by counsel.” And claims: “It was not an attempt to substitute one action for another, or one party for another, but an effort to set forth certain matters that had arisen since the commencement of the action. Section 5084 of the Mansfield’s Digest of the Statutes of Arkansas (section 3289 of the Indian Territory Annotated Statutes of 1899) provide: ‘The plaintiff and defendant respectively may be allowed on motion to make a supplemental complaint, answer or reply, alleging facts material to the case, occurring after the filing of the former complaint, • answer or reply.’” Then quotes section 5080, Mansf. Dig. as follows: “Section 5080 of the Mansfield’s Digest of Statutes, which provides for amendments, says that: ‘The court may at anjr time in furtherance of justice, on such terms as may be proper, amend any pleading or jiroceeding bj* adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect or by inserting other allegations material to the cause.’ And following
Defendant in error then says: “Upon all principles of reasoning such amendment should be allowed. There was no change in the cause of action by such amendment.” In reply to that suggestion, we -would cite 6 N. D. 222, 69 N. W. 461, 49 L. R. A. 285, on the motion for rehearing in the case of Swedish-American Nat. Bank vs Dickinson,' as follows: “If one who has borrowed money fails to pay it, a cause of action against him for money loaned exists. If his creditor thereafter takes the debtor's note in full payment, the old cause of action is extinguished, and a new one is created. The fact that there was an original debt is important only for the purpose of showing a consideration for the note. -But an action upon such a note, under such circumstances, cannot be regarded as an action for money loaned. The original cause of action in the case supposed lias been wiped out. If, in turn, a bond should be executed in payment of the note, the cause of action on the note would, in turn, be*destroyed. If judgment should finally be recovered upon such bond, the cause of action-upon the bond would like
Defendant in error cites 1 Enc. Pl. & Pr., p. 474, as to the test to be applied in determining whether an amendment can be filed, as follows: “The usual tests are whether the original and amended bills found the right of complainant to relief on different and inconsistent titles, or upon entirely inconsistent claims, arising out of a different state of facts.” But he failed to cite the whole paragraph, which is as follows: “Whether, on the exercise of the right, an amendment falls within the limitations is sometimes a subtle and difficult matter requiring nice discrimination. The usual tests are whether the original and amended bills found the right of complainant to relief on different
We do not think the samé-'.defenses were applicable, neither do we think that the matters'in the original and amended bills could have been properly stated in the alternative in the original bill. We are of the opinion that the judgment in this case should be reversed.
Reversed and remanded.