64 P. 705 | Cal. | 1901
Appeal from a judgment for foreclosure of mortgaged premises and from an order denying defendant's motion for a new trial.
The original complaint counted on a promissory note made *423 by the defendant to one Speyer, March 14, 1894, payable six months after date, and assigned to plaintiff. It was filed September 12, 1898, two days before the lapse of four years from the maturity of the note. An amended complaint was filed September 16, 1898, which, in addition to the matter alleged in the original complaint, counted also on a mortgage of even date, executed by the defendant to secure the note, and also made one W.G. Witter a party, as claiming some interest in the mortgaged premises, etc.
The defendants each moved to strike the amended comlaint from the files, on "the ground that [it] wholly changes the cause of action," and the motions were denied. The amended complaint was then demurred to on general grounds, and on the ground that the action was barred by the provisions of section
The answer of the remaining defendant, besides a general denial and the plea of the statute, pleads affirmatively that by deed of date June 20, 1898, he had conveyed the mortgaged property to W.G. Witter, subject to the mortgage, and "that the plaintiff negligently and without the consent of [the] defendant . . . . permitted the statute of limitations to run on said mortgage," etc. On this plea it is found that defendant deeded the land to W.G. Witter as alleged; and it appears from the ruling on demurrer that as to him the action was barred. On the issues raised by the general denial and the plea of the statute, the findings are for the plaintiff. Judgment in the usual form was accordingly rendered for the foreclosure of the mortgage and for the docketing of a deficiency judgment.
The principal questions involved relate, — 1. To the refusal of the court to strike out the amended complaint; 2. To the overruling of the defendant's demurrer and plea of the statute of limitations; and 3. To the sufficiency of defendant's affirmative plea.
1. In considering the limit to the right of amendment, cases of amendment, at the trial, for variance under sections
On this point I find no general rule laid down by the decisions in this state. All that is said is, that great liberality should be used by the courts in allowing amendments (Burns v. Scooffy,
In other states the decisions are conflicting. (Pomeroy on Code Pleading, sec. 566.) In one, and perhaps the most numerous, class of cases, the rule is established, says the author cited, that a party "cannot, under the form of an amendment, change the nature and scope of his action"; or, rather, as he adds in the same breath, "he cannot substitute a wholly different cause of action." The latter, however, is an essentially different proposition, and is the form in which the rule is commonly asserted, — as, e.g., in Shields v. Barrow, 17 How. 144, and the Alabama cases cited in note to 1 Ency, Pl. and Prac., 463. And it is obvious that the unqualified way *425
in which the rule is sometimes stated — i.e., that a new or different cause of action cannot be introduced by amendment — cannot be accepted. For the most common kinds of amendments are those in which complaints are amended that do not state facts sufficient to constitute a cause of action; and in these, and often in the case of new parties, a new cause of action is in fact for the first time introduced. All that can be required, therefore (to use the language of Mr. Pomeroy), is that "a wholly different cause of action" shall not be introduced; or, as said by the court in Shields v. Barrow, supra; that "a complainant [is not] at liberty to abandon the entire case made by his bill, and make a new and different case by way of amendment"; or "to strike out the entire substance and prayer of his bill, and insert a new case by way of amendment"; or, as expressed by this court in an early case, the matter of the amendment must not be "entirely foreign to the original complaint." (Nevada County etc. Canal Co.v. Kidd,
The rule has not been expressly adopted in any of the decisions in this state; though the point that it had been violated has often been made, and overruled on special grounds, — as, e.g., that the amendment did not "materially" change the cause of action (Louvall v. Gridley,
In aplying the rule, some confusion has resulted from the neglect to define the terms, "cause of action" and "action"; to which, therefore, our attention must be first directed.
The latter term is very commonly confounded with the suit(litis) in which the action is enforced. But this is not the technical meaning of the term, according to which an action is simply the right or power to enforce an obligation. "An action is nothing else than the right or power of prosecuting in a judicial proceeding what is owed to one," — which is but to say, anobligation. (Actio nihil aliud est quam jus persequendi injudicio quod sibi debitur.) The action therefore springs from the obligation, and hence the "cause of action" is simply the obligation. This is in accordance with the view of Mr. Pomeroy, though expressed by him in new and somewhat awkward terms. (Pomeroy on Pleading and Practice, sec. 453.)
The obligation thus constituting the cause of action may be either ex contractu or ex delicto; and again, the latter may be either for compensation or damages, or for restitution, — as, e.g., the obligation of a wrong-doer to restore the property of another. For, though there is a distinction between actions brought for the recovery of damages or compensation and those brought for restitution, — the latter constituting actions inrem, and the former actions in personam, — yet in either case the action is to enforce an obligation; nor can there be an action for any other purpose. (1 Austin on Jurisprudence, sec. 527.)
The "cause of action" is therefore to be distinguished, also, from the "remedy," — which is simply the means by which the obligation or the corresponding action is effectuated, — and also from the "relief" sought. (Pomeroy on Pleading and Practice, sec. 453.)
Applying these definitions to the case at bar, it is clear that the cause of action set up in the original and that set up in the amended complaint was simply the obligation sought to be enforced, — that is to say, the obligation to pay the money agreed to be paid, — and that the only change that took place was in the remedy by which it was sought to enforce the obligation. *427
This was the view taken in Lackner v. Turnbull,
In the present case, the cause of action was the obligation to pay the note, to which the mortgage was merely an incident.(Storch v. McCain,
The case therefore comes within the rule. Nor is this decision in conflict with Ramirez v. Murray,
2. It follows there was no error in overruling the defendant's demurrer, or his plea of the statute. Where the cause of action is not changed, the time to which the statute of limitations runs is the filing of the original complaint. (Lorenzana v. Camarillo,
Nor is the case affected by the provisions of section
3. In the affirmative defense set up by the defendant it is claimed that by the negligence of the plaintiff in suffering the mortgage to be barred as to the defendant's grantee, the obligation of the defendant was extinguished; but I know of no principle of equity on which this claim can be maintained. A surety may sometimes be released by failure to pursue the the principal with due diligence; but the converse is not true. The case of Hibernia Sav. and Loan Society v. Thornton,
Other points made by appellant's counsel are, — 1. The refusal of the court to grant a continuance; 2. The denial of the defendant's motion for a reporter; 3. The admission of the note in evidence, and the alleged insufficiency of the evidence to show that the assignment was made to the plaintiff before the beginning of the suit. With regard to the first point, it will be sufficient to say, that, on the facts shown by the bill of exceptions, there was no error, and that resort cannot be had to the affidavit of the defendant to show the contrary. With regard to the second, as the reporter could not be found, the motion could not be granted. Whether it was error in the court to proceed without the reporter need not be determined. The case was one in which the reporter's service could very well be dispensed with without inconvenience, and it is at least clear that no harm could have resulted. As to the admission of the note, the objection, I think, was not sufficiently definite. The note was not barred by the statute; and it was immaterial whether or not the assignment was dated. It was not objected that it did not appear that the assignment was not made before the beginning of the suit; nor was the witness asked that question. As to the evidence, — in the absence of any evidence to the contrary, — it was sufficient to justify the finding. The note was to Speyer, "Cashier of Paso Robles Bank," and presumably for its use, and on his ceasing to be connected with the bank in the year 1895, there was at least an equitable assignment to the equitable owner. Inferentially, the formal assignment was made about that date, and at all events would relate to it.
I advise that the judgment and order appealed from be affirmed.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
McFarland, J., Henshaw, J., Temple, J.
Hearing in Bank denied.