163 P. 255 | Utah | 1917
TMs was an action brought by S. P. Robinson, during his lifetime, upon a judgment alleged to have been rendered in the district court of the fifth judicial district for Oneida county, State of Idaho, in favor of S. P. Robinson and against the defendant and appellant, D. J. Rees. Since the appeal was taken to this court, S. P. Robinson died, and by substitution the appeal is being prosecuted by Stuart P. Dobbs as the administrator of the estate of the said S. P. Robinson, deceased.
Substantially the complaint sets forth that the said district
The defendant’s answer denies generally all the material allegations of the complaint, with the exception that it is admitted therein by the defendant that he has not paid the, alleged judgment sued upon, and that he did not appear, either in person or by attorney, in the action in which judgment was obtained against him.
At the trial of the cause the plaintiff offered in evidence a certified copy of the entire record of the Idaho court, certified to by the clerk of said court, and the judge thereof as well. The offer was objected to by defendant upon various grounds, but the only ground that is material here, and upon which the court rejected the evidence is:
“That there is a fatal variance between the allegations of the complaint in this action and the offered proof, in that a judgment is pleaded in the amended complaint rendered in an action wherein the plaintiff in this action was plaintiff in such action and D. J. Rees was defendant in such action, and the offered proof shows that the action pleaded or attempted to be pleaded was one S. P. Robinson, the plaintiff in this action, against D. J. Rees and others, against whom a judgment was attempted to be given of a joint and several character.”
Upon this ruling being made by the court, the plaintiff then asked leave to amend his complaint so that the same would, in this respect, conform to the evidence that had been offered
The plaintiff duly excepted to the findings of fact, conclusions of law and the entry of judgment, and the order of the court dismissing his action; and his legal representative brings the case here for review assigning as error the rulings of the' court thus made.
The record in this case shows clearly that the transcript of the judgment of the Idaho court, offered in evidence by the plaintiff, was of a judgment in which the defendant D. J. Rees was severally liable for its payment to the plaintiff.
Comp. Laws 1907, section 2918, provides:
“Persons severally liable upon the same obligation or instrument,' including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all,' or any of them, be included in the same action, at the option of the plaintiff.”
The plaintiff’s complaint alleged:
‘ ‘ That on the 14th day of December, 1914, a judgment was duly given and made by said court in favor of the plaintiff and against the defendant D. J. Rees, for the sum of $1,167; thát no part of the said judgment has been paid. ’ ’
The proof offered by the plaintiff, in presenting the transcript of the judgment of the Idaho court, it is true, stated the liability of the defendant in different language, to our minds, not materially different or less certain and effective, so far as the issue between the plaintiff and defendant was involved, but certainly and substantially the same, by saying to the court: '
“It is hereby ordered, adjudged and decreed that plaintiff do have and recover against- each of the defendants D. J. Rees and Carl D. Booker judgment.”
Assuming that there is a variance between the allegations of the plaintiff’s complaint and the proof thus offered, can it then be consistently contended that the plaintiff’s application to amend should be denied when the effect of such amend
Comp. Laws 1907, section 3001, expressly provides:
"No variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to Ms prejudice in maintaining his action or defense upon the merits. Whenever it appears that a party has been so misled, the court may order the pleading to be amended, upon such terms as may be just.”
No contention is made by defendant and respondent that he was misled to Ms prejudice in maintaining his defense upon the merits, nor can we conceive how respondent could consistently make any claim in tMs case that he was misled or in any manner prejudiced by plaintiff’s offer of the transcript of judgment of the Idaho court. On the contrary, this court is of the opinion that the offer was a proper one, clearly tending to prove the issue between the plaintiff and the defendant as presented by the pleadings of the respective parties in the case. Therefore, with the present state of the pleadings, we are of the opinion the plaintiff is entitled to judgment as prayed for in his complaint.
The judgment of the lower court is reversed, with costs to appellant.
