27 Ind. App. 641 | Ind. Ct. App. | 1901
— Appellees John G. and Henry Rund filed their complaint on May 14, 1898. In August, 1898, they filed an amended complaint averring facts intended to show that in 1885 Henry Rund “became the owner” of a certain described strip' of ground, one foot four inches wide and 132 feet long; that John G. Rund has an equitable interest therein. The pleading attempts to show ownership of the ground by appellees and avers that appellants claim to own the same, which claim is unfounded and is a cloud upon appellees’ title, and concludes with the prayer that appellees’ “title in and to said strip’ of ground [describing it], be quieted in them against all claim of defendants and that they have all proper relief.”
Issues were formed and the cause submitted to the court for trial. After the evidence was concluded and the argument of counsel heard, appellees, by leave of court, and over appellants’ objection, filed what is termed “their supplemental and additional complaint”. Appellants answered this by general denial. In this “supplemental and additional complaint”, in which the wives of appellees were also
The statute provides that the court may, on motion, allow supplemental pleadings, showing facts which occurred after the former pleadings were filed. §402 Bums 1901. The former pleading in this case which it was desired to amend or supplement was an amended complaint. That amended complaint presented a single issue. Whether the facts averred in that pleading showed ownership of the land, or simply an easement in the same, its manifest theory was to quiet appellees’ title to that interest, and that was the only relief asked or that could have been granted. Ellis v. Bassett, 128 Ind. 118, 25 Am. St. 421.
This subsequent pleading shows an abandonment of the former issue and presents an entirely different one. The relief sought in the subsequent pleading is not additional to that already prayed, but the relief there asked is abandoned and relief of an entirely different nature is demanded. It was in effect an amended pleading on which issue was joined by the general denial. It changed the legal effect of the pleading and required new and entirely different proof. In
It is held that it is not error to permit an amendment after a cause is submitted on the evidence if the amendment does not change the legal effect of the pleading. But it is held error to permit a material amendment after the cause is submitted to the court for decision upon the evidence. Sharpe v. Dillman, 77 Ind. 280.
In Maxwell v. Day, 45 Ind. 509, the court said: “It is a settled rule of practice under the code, that pleadings can not be amended so as to' change the issues or make a new issue, after the jury has retired to consult, or after the cause is submitted to the court for decision upon the evidence.” See, also, Kerstetter v. Raymond, 10 Ind. 199; Lewark v. Carter, 117 Ind. 206, 3 L. R. A. 440, 10 Am. St. 40.
Tire motion for a new trial should have been sustained.
Judgment reversed.