38 Colo. 153 | Colo. | 1906
delivered tlie opinion of the court:
The plaintiff (defendant in error here) alleges in his complaint that he brought suit for himself and fifty other persons, owners of the Columbus lode,
The. defendant objected to and opposed the filing of the amended complaint upon the grounds, among others, that no showing had been made, and' that the three paragraphs of the complaint, are identical with certain paragraphs of -the original complaint. The protest was overruled, and plaintiff was. allowed to file his amended complaint. Motion to strike the complaint upon substantially the grounds set forth in the protest was overruled. A demurrer upon the grounds that the complaint does not state a cause of action, and that the cause of action set forth in the amended complaint-is a departure from that of the original complaint, was overruled. The defendant elected to stand upon the demurrer; default was entered against him, and subsequently the plaintiff offered proof in support of his title. The court entered a decree and judgment as prayed for in the complaint. The case comes here by writ of error.
It is first contended that the plaintiff was not granted permission to prosecute the suit for and in behalf of the alleged co-owners. No order of-court
The defendant insists that there is a departure in the pleadings — that the cause of action stated in the amended complaint is not the same as that stated in the original complaint, and that a plaintiff is not permitted to change his cause of action by amendment. It is said that the action in the original complaint is to remove a cloud from the plaintiff’s title, and that the amended complaint is an action to quiet title. The distinction between these causes of action is well understood; and, if the plaintiff has changed his cause of action from one to- remove a specific cloud to one to. quiet title, the defendant’s contention must be sustained.
We are of opinion that the cause of action has not been changed. It is conceded that the original complaint contained the necessary averments of an action to quiet title, but it is cl aimed that other aver-' ments-restricted the action to a specific tax deed, and
The allegations concerning Knight are, that he received a quit-claim deed from one Hanson, by which Hanson, conveyed all his right, title and interest in the property to Knight, and that Knight “is now falsely and without right claiming an estate in said property adverse to the title of plaintiff and his co-owners.” The complaint concludes: “That the defendant, S. C. Knight, be required to plead his claim, estate or interest (if any he has) in said prem
Finally, it is contended that the amended complaint does not state a cause of' action, in that it fails to allege ownership of the property in the plaintiffs, but alleges that plaintiffs “claim” a fee simple title. The allegations of the complaint bearing upon this branch of the case are: “Plaintiff states: 1. That he brings this suit on behalf of himself and approximately fifty other persons, who are co-owners with him of-the Columbus lode mining claim. * * * 2. That, ever since the month of May, 1885, plaintiff and his co-owners have been and now are in possession of said mining claim, claiming title thereto in fee simple. ’ ’
The first allegation is, we think, a sufficient assertion of title. The second does not, we think, limit the first, but is merely an allegation as to the character of plaintiffs’ possession.
We cannot recommend these allegations as a form to be used in such cases, but we cannot reverse
For the reasons given, the judgment is affirmed.
Affirmed.
Chiee Justice G-abbert and Mr. Justice Campbell concur. _