99 P. 298 | Mont. | 1909
delivered the opinion of the court.
The original complaint in this case was filed in the district court of Silver Bow county on July 30, 1901. A judgment, thereafter rendered in favor of the plaintiff on the pleadings, was reversed by this court. (See 29 Mont. 317, 74 Pac. 734.) General and special demurrers were filed to the original complaint, but the record does not disclose that the court ever passed upon the same, and afterward the defendant filed an answer in which it denied each and every allegation of the complaint. On February 2, 1907, the plaintiff filed his amended complaint, and the court afterward sustained a general demurrer thereto. On March 6, 1907, a second amended complaint was filed, and to that pleading the defendant, among other allegations, answered that the alleged cause of action was barred by virtue of the provisions of certain statutes of limitations. Upon the trial the court below sustained the defendant’s contention, refused to allow plaintiff to introduce any evidence under his second amended complaint, and entered judgment for the defendant, from which judgment an appeal is taken.
It is conceded that if the defendant’s premises are correct, then its conclusion that the cause of action is barred is also
There are many cases in the books which hold that, where the amendments offered disclose a clear departure from law to law, or from fact to fact, where an entirely new claim or demand is for the first time asserted, or where an additional cause of action is brought forward by way of proposed amendment, the opera-lion of the statute of limitations is not suspended by filing the original complaint. There appears to be little, if any, diversity of opinion among courts and text-writers as to the law in such cases. (25 Cyc. 1308;. Union Pac. Ry. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983.) Then there is a class of cases holding that where the original complaint states a cause of action, but does it imperfectly, and afterward an amended f om plaint is filed correcting the defect, the plea of the statute of limitations will relate to the time of filing the original complaint. (25 Cyc. 1307.) Again, there are cases holding that where the original complaint states no cause of action whatever, it will not arrest the running of the statute, and an amendment made after the bar of the statute is complete will be regarded as the beginning of the action, in reckoning the statutory period of limitation (25 Cyc. 1309), and these are the eases relied upon by the respondent.
As a copy of the original complaint is before us, we have no hesitancy in saying that the filing of the same constituted at least a h-ona fide attempt to commence an action. It would be interesting to inquire, if we might do so, whether it actually fails to state a cause of action, or is kimply uncertain in its allegations. Another interesting question which might have been presented is whether there may not be a distinction between a complaint
In the case of Prokop v. Gourlay, 65 Neb. 504, 91 N. W. 290, the supreme court of Nebraska held that, where the owner of personal property delivered it to another for sale on commission, and no time was fixed within which such sale was to be made, the law would imply a reasonable time, and a petition which failed to allege that a reasonable time had expired for making such sale was fatally defective. The original petition was afterward amended in the court below by adding the allegation that' a reasonable time had elapsed, and the plaintiff thereafter appealed from a judgment in favor of the defendant. The supreme court said: “A motion was made by the defendants to strike the amended petition, for the reason that it was not' an amendment, but set up a new cause of action, and did not accrue within four years, and that, so far as amended, it was a departure from the original cause of action in the justice court. This motion was overruled. A demurrer was then filed to the petition, and sustained upon the ground that the amended petition set up a new cause of action, and was therefore barred by the statute of limitations, and the cause was thereupon dismissed. * * * Without considering whether the question proposed can be properly raised by demurrer, it will be seen that there is only one question presented, and that is whether or not the amendment to the petition was such as to set' up a new cause of action, or whether the additional facts alleged were merely an amplification of the original. From the opinion -of Commissioner Albert, it appears that the judgment based upon the first petition was reversed for the reason that, the petition having failed to allege that a reasonable time had elapsed after the delivery of the organ to the bailee, it was insufficient to state a cause of action in conversion. The only additional allegations in the amended petition t'o those in the bill of particulars upon which the action was begun are that
If it be true that when the statutory period has expired pending the decision of the court on demurrer to the complaint, which decision does not determine the cause on the merits, the-party may commence a new action for the same cause within a year, asserting again the same facts, accompanied by additional allegations which complete the statement of a good cause of action, then it would seem reasonable to conclude that the filing of the original complaint, which was defective for want of such “additional allegations,” did in fact have the effect of arresting-the operation of the statute, and was the commencement of an action, and it cannot be said in this state that the action is always, barred unless a good complaint is filed in the first instance. Indeed the language employed in section 6464, supra, may perhaps be construed as a legislative recognition of the principle:
But we are able to place our decision upon broader and more substantial grounds than any of those above suggested, although the statutes just noticed must not be lost' sight of in construing the ones we are about to cite. Section 6532, Revised Codes, provides that the complaint in an action must contain a statement of the facts constituting the cause of action in ordinary and concise language. The defendant may demur to the complaint for want of a sufficient statement of facts, and this objection is never waived. (Revised Codes, sec. 6539.) The plaintiff may amend once as of course before answer or demurrer filed
We are of opinion that the court below was in error in bolding that tbe action was not commenced by filing tbe original complaint, and that tbe operation of tbe statute of limitations was not arrested by filing that pleading. Tbe judgment appealed from is reversed, and tbe cause is remanded for further proceedings in accordance with tbe views herein expressed.
Reversed and remanded.