17 Colo. App. 167 | Colo. Ct. App. | 1902
Without regard to the prayers for judgment and decrees, it is too manifest to require any argument that the complaint stated only an equitable cause of action against Joralmon & Company, if it stated any at all, and that if under its allegations, plaintiff was entitled to any relief against this defendant, it was equitable relief. The complaint alleged no contractual relations between the plaintiff and Joral
The allegations of the second amended complaint were largely the same as in the other complaints, but in one respect essentially and vitally different. There was set forth an express agreement and obligation on the part of Joralmon & Company to pay to plaintiff the amount of the advances made by him for the building purposes under his contract with the construction company, and hence stated a cause of action at law instead of equity. By reason of this alleged specific promise by Joralmon & Company, plaintiff sought a money judgment against them.
Neither Snell nor the construction company ever made any appearance, and default was taken against
We think the court was correct in its ruling. In Rockwell v. Holcomb, 3 Colo. App. 1, it was said by this court: “The right to amend a complaint, even after leave granted by the court, is limited to the accurate and correct expression in legal form of a cause of action which has theretofore been inaccurately or insufficiently expressed.” The second amended complaint was not limited within the requirements of this rule. It was substantially and in effect the same as the original, and as the first amended complaint, except that portion of it which sought to set forth a cause of action at law against Joralmon & Company. In this respect it was a clear departure, which under the well-settled rules of pleading, was not permissible. A plaintiff may not under the guise of an amendment to a complaint, change the cause of action as stated in the original complaint from a legal to an equitable one, or vice versa,.—Givens v. Wheeler, 6 Colo. 149; Thompson v. White, 25 Colo. 226; Bliss, Code Pleading, § 429.
We are aware that under the code practice, the form of prayer is immaterial, and that if the facts alleged and established entitle the plaintiff to relief, the court may give it, although it may not be .specifically demanded. We have referred to the prayers
For the reasons given the judgment will be affirmed. Affirmed.