134 P. 885 | Utah | 1913
(after stating tbe facts as above).
“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
“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.
“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.
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.