92 Neb. 167 | Neb. | 1912
Lead Opinion
This suit was instituted in the district court for Lincoln county to quiet plaintiff’s title to certain lands in that county, described in plaintiff’s petition. Defendant William Robb was holding as grantee of the defendant county, under a title obtained in a tax foreclosure proceeding which was void by reason of the fact that in such proceeding service was had by publication upon the then record owner as a nonresident, when in fact he was an actual resident of this state. Albert Johnson, whom we will hereinafter designate as defendant, intervened, and as an answer and cross-petition to plaintiff’s petition alleged, substantially, that he purchased the land in con
For reply to the answer and for answer to the cross-petition of defendant Johnson, plaintiff traversed the allegations in such answer and cross-petition with general and specific denials, and alleged that by the deed of March 6 he purchased whatever unlitigated equity defendant had in the premises; that at that time defendant Robb was claiming to be the owner, was in possession under the proceedings referred to, was denying that Johnson had any right or title or any right of redemption; that, while plaintiff believed that Johnson had an equity in the premises and the right of redemption, yet such rights of Johnson could only be enforced by extended litigation in the courts; that prior to the execution and delivery of the deed plaintiff fully informed defendant, both by himself and his agent, L. E. Roach, as to the full rights that said Johnson had in the premises; that Johnson was fully in
The district court found that the tax foreclosure proceeding was void and vested no title in defendants Robb; that they were entitled to nothing more than the return of the money which they had paid to the defendant county, and for subsequent taxes, with interest and penalties, which sum the court found to be $215. The court further found upon the issues joined between plaintiff and Johnson that for about 30 days prior to the making of the deed in controversy Johnson had knowledge of the condition of the property and title, and had every opportunity to make investigation concerning the same; that there were no fiduciary relations existing between Peterson and Johnson with reference to said transaction, found the issues in favor of Peterson as against Johnson, and dismissed the petition of intervention. Prom this decree defendant Johnson, alone, has appealed, and the only question for our consideration is the one presented by his cross-petition, viz., his right to have his deed to plaintiff set aside upon the grounds alleged in his answer and cross-petition
While not expressly, it is practically conceded in the briefs of counsel for defendant that upon the pleadings above outlined, and the evidence, the decree of the trial court cannot be disturbed. They seek to avoid this disastrous result by now tendering and asking leave to file in this court an amended answer and cross-petition “to conform to the proofs adduced upon the trial in the district court,” in which, in addition to what was alleged in their original answer and cross-petition, they alleged that plaintiff and L. E. Roach, a practicing attorney at North Platte, entered into a collusive agreement to defraud defendant out of his land, worth, as they alleged, over $3,000, for the mere pittance of $100; that in furtherance of such collusive agreement plaintiff induced defendant to write to Roach for information respecting his land and legal rights, and to employ him as defendant’s attorney in that behalf; that Roach accepted the retainer, but, in violation of his duty as such attorney, he concealed from defendant all information as to the value of the lands, and entered into a collusive agreement with plaintiff to assist plaintiff in obtaining title thereto for a pittance, in which event plaintiff and Roach were to divide the profits made from such transaction. Plaintiff vigorously assails the right of defendant to file such amendment, upon the ground that it constitutes a material change of defendant’s claim or defense, and, if permissible at all, the leave should have been sought and obtained in the trial court; that, while an appellate court may, and occasionally does, permit the amendment of pleadings to conform, to the proofs, for the purpose of sustaining a judgment of an inferior court, it never permits such amendment for the purpose of reversing a judgment.
Defendant made no request in the court below, either
Upon the point under consideration, section 723 of the New York code is identical with our section 144. In Alden v. Clark, 86 Hun (N. Y.) 357, the first paragraph of the syllabus holds: “Under the provisions of section 723 of the code of civil procedure, power is given the court to conform the pleadings to the proof only in a case ‘where the amendment does not change substantially the claim or defense.’ ” In the opinion it is said: “By section 723 of the code of civil procedure power is only given to conform the pleadings to the proof in a case ‘where the amendment does not change substantially the claim or defense.’ Apparently, under the evidence given, Clark claimed that he had through his purchase from Butler an absolute title to the safe. As his answer stood, it was insufficient as a defense.. The amendment sought,' if it amounted to anything, would substantially change the defense set up in the pleading and so would not be admissible.” In Fitch v. Mayor, 88 N. Y. 500, it is said: “As the case stood before the trial court, it was its duty to dismiss the complaint, for the alleged cause of action had not been made out. It is not necessary to restate the grounds of this conclusion, for in regard to them-we concur with the learned court below. The appellant, however, desires us to amend the complaint so that the plaintiff shall be designated as ‘record clerk of the court of special sessions,’ and supposes that this may be done nnder section 723 of the code of civil procedure. If the section applies to this court, the power should not be exercised unless it is plain that no substantial right of the adverse party would be affected. Here the case has been
The reason assigned by plaintiff why the amendment-should not be permitted in this court, viz., that this court will in a proper case permit an amendment to conform a pleading to the proofs for the purpose of sustaining a judgment, but will never grant such permission to defeat a judgment, is also fatal to defendant’s right to this amendment. We turn again to the New York decisions. In McGinniss v. Mayor, 6 Daly (N. Y.) 416, it is said: “No motion was made on the trial to conform the pleadings to the facts proved, or to amend the answer. It is now too late to do either. The power of the general term to amend a pleading, or to conform the pleadings to the proof, is only exercised to support or sustain the judgment — never to reverse it.” In Steinam v. Strauss, 18 N. Y. Supp. 48, it is said: “Two questions are raised upon this appeal. The first is whether the judgment was void upon its face; and the second, whether, as matter of fact, and from proof of extraneous circumstances, it was invalid. The latter proposition it is not necessary to consider. No such issue was presented by the complaint, and although evidence Avas taken in respect thereto, and the learned judge seems to have passed upon the same, yet, as it Avas not within the scope of the pleadings, and they never having been amended for the purpose of conforming the pleadings to the proof, this question was improperly considered by the court, and the result of the decision it is not necessary to revieAv here. Tf it may be said that the court should amend the pleadings to conform the same to the proof, the proof having been taken without objection, it may be suggested,
The supreme court of Vermont has had the same question under consideration, and in’ Chaffee v. Rutland R. Co., 71 Vt. 384, it is said: “An amendment is not allowed if it introduces a new cause of action. An amendment in the case before us is only permitted in order that the pleadings may conform to the proof, and for the purpose <>f sustaining the judgment, not reversing it (1 Ency. Pl. & Pr. 582) ; for, as said by Redfield, C. J., in White River Bank v. Downer, 29 Vt. 332, ‘an amendment will cure error, but cannot create it.’ ”
The only question left is: Is the decree of the district court sustained by the pleadings and proofs upon which it was based? After a careful reading of the entire record, we feel that that question must be answered in the affirmative.
The judgment of the district court is therefore
Affirmed.
Dissenting Opinion
dissenting.
The majority opinion announces two neAv propositions of Iuav, neither of which have been so determined heretofore by this court.
1. The first proposition is that, in an action for fraud where facts constituting the alleged fraud are stated, an amendment Avhicli alleges additional facts constituting the same fraudulent transaction changes substantially the claim or defense, so that such an amendment cannot be allowed in any case after judgment. Section 144 of the code contains the language: “The court may, either before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading * * * Avhen the amendment does not change substantially the claim or defense by conforming the pleading or proceeding to the facts proA7ed.” What does the statute mean by the Avords “change substantially the claim”? In one sense of these words, any change of a petition which would admit of a different decision than could be supported by the original petition Avould of course be a substantial change, but unless such a change can be made — that is, unless a pleading can be amended so as to support a different judgment — there would never be any object in making the amendment. The purpose of allowing the amendment is to support a judgment that otherwise Avould not be supported, and this of course, in the ordinary sense of the word, is a very substantial change. We have, however, generally held that to change “the claim” is to substitute a neAV cause of action for the former one or to add a neAv cause of action to the former one, and I suppose that the purpose of this proviso in the statute is to prevent an amendment that Avould allege a neAv cause of fiction, and not to prevent any change or amendment that Avould add to or make more certain the cause of action upon Avhich the suit was based. And then, again, to change substantially the claim is not limited to changing the claim alleged in the original pleading, but under the liberal practice of our code must be
2. I am still more strongly opposed to the new construction which is given to the statute in another respect. The second paragraph of the syllabus is: “The power of the supreme court to permit an amendment of a pleading to conform to the proof is, as a rule, only exercised to sustain a judgment, and not to reverse it, except where it clearly appears that a refusal to permit the amendment would cause a miscarriage of justice.” There are many decisions of this court in which it is held that a pleading may be amended after judgment to conform to the proofs, and in all of them the language is general and no distinction made as to whether such amendment will sustain or reverse the judgment of the trial court. The first case cited and reviewed in the majority opinion is Humphries v. Spafford, 14 Neb. 488. The opinion was by Chief Justice Lake. The petition in foreclosure failed to allege that no payments had been made on the note, the allegation being that no payments were made at the particular time when the notes fell due. The petition also failed to allege that the defendant fajled to pay interest “within ten days after due.” The allegation was that he failed to pay it on the particular day on which it came due. The trial court therefore held that one of the notes was not due and refused to give the plaintiff judgment thereon. The plaintiff appealed, and the supreme court held that upon appeal her petition might be amended in accordance with the evidence upon the trial, and that the case would be remanded to the trial court for that purpose, if she decided to so amend. This was a direct holding that the pleadings would be amended for the purpose of reversing the judgment of the trial court. In regard to this case the opinion says: “The ruling there, if justifiable at all, is under the clause of section 144, ‘or by correcting a mistake in the name of a party, or a mistake in any other
Unless the case has been tried in the lower court as though the proposed, amendment was already in the pleadings, the amendment is never allowed in this court either to sustain or to reverse the judgment. If it was so tried, and no objection was made to the evidence because of the defect in the pleading and the court or jury determined the issue as tried, the amendment will be allowed in this court, if necessary, to make the pleadings conform to the case actually tried, or the case will be disposed of as though the amendment had been made. Lawsuits were not invented to afford sparring matches to exhibit the cuteness of attorneys at the expense of justice to litigants, at least they are not so regarded in modern times in this state. The courts are not looking for immaterial technicalities to defeat justice.
The second paragraph of the syllabus, which is also quoted in the opinion as the view of the majority of the court, does not harmonize with the discussion in the opinion, and I think.that discussion is misleading in view of the quotations made from the early cases in other jurisdictions, which quotations do not fully present the real point decided by those courts. The second paragraph of the syllabus makes an unnecessary and incorrect distinction in amendments in this court. The true test is, are they in furtherance of justice? And that depends upon how the case was tried in the court below. If the parties, without any suggestion of defect in the pleadings, have fully and fairly tried the cause, the pleadings in this court should be made to state the cause actually so tried, or the cause should be disposed of here' as though that had been done.
Dissenting Opinion
dissenting in part.
I do hot agree with the proposition that the proposed amendment changes the “claim.” The action is based on fraud. The tendered amendment merely adds another specification of fact tending to establish the same. Otherwise, I concur.