287 P. 290 | N.M. | 1930
Appellant admits the correctness of appellee's statement of the law to the effect that where a demurrer is sustained and a party pleads over, such party waives the error, if any, committed in sustaining the demurrer. Here it is also conceded that the purpose of the provisions of our Code permitting amendments is not to permit the restatement in the same form of a defective cause of action, since such repetition would be endless. But appellant contends that under the facts shown by the record, he was harshly and unjustly dealt with in the matter of a pro forma order, and that the effect is to deprive his client of a hearing on the merits. Appellee urges that the appellant has placed himself in his position and must abide by it.
From the record as we view it, there can be no question but that counsel for appellant proceeded upon the erroneous theory that some order must be made as to the demurrer against the first amended complaint, before he could file his second amended complaint, even with leave. Manifestly this is not the fact, for the very filing of the subsequent complaint would have eliminated, without an order, the pending demurrer. It would have been rendered nugatory. We might feel compelled to leave appellant where he put himself, were it not for the evident fact that counsel for appellant did not intend to abandon Judge Brice's favorable ruling nor consent to an order the effect of which was to reverse that ruling and establish the validity of a demurrer which the defendant had no right *639 to file, and which was previously adjudged against him. We think the practical solution of the matter is to treat the order sustaining this second demurrer as inadvertently entered in the form used and that it should have been treated as permission to withdraw the first amended complaint and file a second. Thus regarded, the first amended complaint is eliminated from the case without adverse ruling, and the second amended complaint could and should have been allowed to take the place of the original complaint which was never adjudged insufficient. That the trial court had power to vacate the pro forma order at the time application was made, we do not doubt, and we feel that he should have done so under the peculiar circumstances presented.
We therefore conclude that the order and judgment striking the second amended complaint and dismissing the case should be reversed, and the cause should be remanded with directions to vacate the order sustaining the demurrer to the first amended complaint, and to require the defendant to plead to the second amended complaint as it may be advised, and it is so ordered.
BICKLEY, C.J., and PARKER, J., concur.
WATSON and CATRON, JJ., did not participate.