Larsen v. Gasberg, 134 P. 885

Larsen v. Gasberg

134 P. 885 | Utah | 1913

McCANTY, O. J.

(after stating tbe facts as above).

1 Tbe principal ground upon which appellant assails tbe judgment is that tbe court erred in permitting plaintiff to •amend her complaint after tbe cause was reversed and remanded for a new trial. It is contended in support of this assignment of error that tbe complaint as amended sets forth a separate and distinct cause of action from tbe one alleged in tbe complaint before it was amended. Tbe cause of action alleged in tbe complaint as *207originally filed was an action to quiet title. The amendments did not change the character of the action. The action still remained an action to quiet title, and the relief demanded in the amended complaint is the same relief asked for in the complaint as originally filed. In the complaint before and after it was amended, plaintiff alleged that she is the owner and in possession of the property, and that the defendant has no right, title, or interest therein, and asked that defendant be required to set forth the nature of his claim to the property. Defendant in his answer denied plaintiff’s title and alleged that he was the owner of the property “subject to an alleged life estate therein in favor of said plaintiff.” Under the issues thus made, plaintiff on the first trial, for the purpose of showing that the chain of title upon which defendant relied was from its very inception invalid, introduced in evidence the judgment roll in the case of Larsen v. Carrington, in an action to which defendant was not a party. On the former appeal of this cause, this court, as we have hereinbefore observed, held that defendant’s rights, whatever they were, to the property were not extinguished by the judgment in that action; that he was entitled to his day in court on the question of fraud, misrepresentation, and want of consideration which the judgment roll in the case mentioned tended to establish and thereby destroy his chain of title. As we have hereinbefore stated, on a retrial defendant objected to the introduction of oral evidence by plaintiff tending to show that the deed from plaintiff to Carrington (which is the source of defendant’s claim of title) was obtained by fraud, misrepresentation, and without consideration. The plaintiff, therefore to overcome this objection, was permitted to amend her complaint by alleging fraud, misrepresentation, and want of consideration.

“Amendments which only amplify the statements or prayer in the original complaint are not deemed to introduce a new cause of action.”

1 Eney. PL'& Pr. 557, and eases cited in note. In the same volume, commencing on page 468, the general rule *208governing amendments of pleadings in equity cases is stated as follows:

“If the hill he found defective in its prayer for relief, or in proper parties, or in the omission or mistake of some fact or circumstance connected with the substance of the case, but not forming the substance itself, the amendment is usually granted, or as more recently stated, amendments, however considerable, the purpose of which is to bring before the court other parties to the controversy, or to strengthen, elucidate, or explain the case made by the original bill, or to put in issue some material fact directly or indirectly affecting the case so made, will be freely allowed at any stage of the proceedings.”

We also invite attention to tbe following cases: Thomas v. Mead, 8 Mart. N. S. (La.) 341, 19 Am. Dec. 187; Casady v. Casady, 31 Utah, 394, 88 Pac. 32; Fell v. Union Pac. Ry. Co., 32 Utah, 101, 88 Pac. 1003, 28 L. R A. (N. S.) 1, 13 Ann. Cas. 1137. We are clearly of tbe opinion that tbe couid did not err in permitting tbe amendments.

2 Counsel for appellant further contend, if we correctly understand tbeir position, that tbe questions of fact presented by .tbe amendments were passed upon and determined by tbis court in favor of appellant on tbe former appeal of tbe cause, and bence tbe decision is tbe law of tbe case as to those points and a final determination thereof, binding alike upon tbe court and tbe parties to tbe action. We think it will be seen from a casual reading of tbe opinion (30 Utah, 471, 86 Pac. 412, 116 Am. St. Rep. 859) that tbe case was reversed because tbe trial court in effect held that appellant’s rights, whatever they were, in tbe property were determined by tbe judgment rendered in tbe case of Larsen v. Carrington (tbe judgment roll of which was admitted in evidence), to which action be was not made a party; and a new trial was granted in order that be might have “bis day in court” and be given an opportunity to try the issue of fraud, misrepresentation, etc. We think it is manifest that it did not occur to tbis court in tbe preparation of tbe opinion that it would be necessary for respondent to amend her complaint to entitle her to introduce evidence on tbe question of fraud, *209misrepresentation, and want of consideration. And we do not wish to be understood as bolding or intimating tbat it was necessary for respondent to amend ber complaint before sbe could properly introduce evidence on tbat issue. Tbe trial court baving permitted respondent to amend ber complaint, tbat question is not before us. Wbat we do say is tbat we tbink it clearly appears from tbe opinion tbat tbe •cause was remanded for a new trial to give tbe parties an opportunity to try tbe question of fraud, a matter concerning wbicb appellant bad not bad bis day in court. Let tbat be -as it may, tbe judgment of tbe lower court was reversed and tbe cause remanded without any specific directions ex■cept tbat a new trial should be granted. Tbe rule is well settled tbat, where a judgment is reversed and a new trial granted without any specific instructions or directions, tbe case stands in the lower court precisely as it did before a trial was bad in tbe first instance. Tbe general rule in this regard is well stated in 3 Ency. L. & P. 579, in tbe following language:

“When a decree is reversed and the cause remanded without specific directions, the decision of the court below is entirely abrogated, and the cause then stands in the court below precisely as if no trial had occurred, and that court has the same power over the record as it had before its decree was rendered, and it may permit amendments to the pleadings to the same extent that it might have done before the trial, and in the exercise of the same 'discretion, except that it is concluded by the legal principles •announced by the appellate court. And where a cause is reversed •and remanded with directions to proceed in conformity with the views expressed in the opinion filed, and it appears from such ■opinion that the grounds of reversal are of a character which may be obviated by subsequent amendments of the pleadings or the introduction of additional evidence, it is the duty of the trial court to permit the cause to be redocketed and to permit amendments to be made and evidence introduced on the hearing just as though it was then being heard for the first time.”

Tbe doctrine is tersely, and we tbink correctly, stated in 1 Ency. Pl. & Pr. 618, as follows:

*210"Where the appellate court reverses a judgment and remands, the cause generally without any specific directions, amendments, to the pleadings may be allowed upon the reinstatement of the case* in the court below as if it had never been tried, although the appellate court may have adjudged the pleadings insufficient on de?-murrer.”

Of course, as stated on page 620 of the same work,

“a party should not be allowed to amend so as to reopen questions-, which have been adjudicated by the appellate court.”

The evidence tends to show, in fact it is all but conclusive,, that the deed from the plaintiff to Carrington was obtained by Carrington through fraud, misrepresentation, and without consideration.

3-The filing of the lis pendens in the suit of Larsen (plaintiff) v. Carrington one day before the execution sale mentioned imparted notice to Gasberg and Miller of plaintiff’s equity, right, title and interest in the property. 5 Words and Phrases, 4183. Gasberg and Miller having bid in (purchased) Carrington’s interest in the property with notice, they were not bona fide or innocent purchasers, and, hence they acquired the interest subject to. all infirmities and defects in the title imparted by the notice. 17 Cyc. 1297, 1298; 3 Freeman on Excutions, section 344.

A number of other questions are discussed by counsel in their brief, but we do not deem them of sufficient importance to warrant us in considering them.

The judgment is affirmed, with costs to respondent.

PEI OK and STEAUP, JJ., concur.