15 W. Va. 444 | W. Va. | 1879
delivered the opinion of the Court :
The first question presented, and in the view we take of the case the only one necessary or proper for us to consider, is: Should the demurrer to the amended bill have been sustained ? The following principles as to amending bills are well settled. A party under the privilege
In Shields v. Barrow, supra, Mr. Justice Curtis after stating the case said : “ The court allowed the above amendment. So that the billthereafter presented not only two aspects, but two diametrically opposite prayers for relief, resting upon necessarily inconsistent cases; theonebe-ing that the court would declare the contract rescinded, for imposition and other causes; and the other that the court would declare it so free from exception as tobe entitled to its aid by a decree for specific performance. Whether this amendment be considered as leaving the bill in this condition, oras amounting to an abandonment of the original bill for a rescission of the contract, and the substitution of a new bill for specific performance, it. was equally objectionable. A bill may be orignally framed with a 'double aspect, or may be so amended as to be of that character; but the alternative case must be the foundation for precisely the same relief; and it would produce inextricable confusion if the’ plaintiff were allowed to do what was attempted here. Sto. Eq. Pl. 212, 213, Welford’s Eq. Pl. 88; Edwards v. Edwards, Jacobs 335.
“Nor is the plaintiff at liberty to abandon the entire ease, made by his bill and make a new and different case by way of amendment. We apprehend that the true rule on this subject is laid down by the vice-chancellor in Verplanck v. The Mercantile Ins. Co., 1 Edw. Ch. 46. . Under the privilege of amending a party is not permitted to make a new bill. Amendments can only be made, when the bill
“ We think sound reasons can be given for not allowing the rules for the practice of the circuit courts respecting amendments to extend beyond this, though doubtless, much liberality should be shown in acting within it, taking care always to protect the rights of the opposite party. * * To strike out the entire substance and prayer of a bill, and inserta new case by way of amend-mend, leaves the record unnecessarily encumbered with the original proceedings, increases expenses and complicates the suit. It is far better to require the complainant to begin anew. To insert a wholly different case is not properly an amendment, and should not be considered within the rules on that subject.” The reasoning of the above opinion is sound and we fully approve it.
How stands the cause before the court? The plaintiff filed his original bill for a specific purpose, to obtain the aid of a court of equity to enforce the lien of a deed of trust. The prayer was, that the land embraced in'- the trust-deed might be sold to discharge the lien. It is
When the cause was again in the ■ court below, the plaintiff was permitted to amend his bill, making an entirely new, case'with different allegations altogether. Having in the original bill charged that the bond of Beckett had not, nor had any part thereof, been paid, and in the amended bill, that it had been paid by John Piercy, Jr., taking it up, and giving his own bond to his father in payment thereof; that is what the charge amounts to. In the amended bill, he attempts to show jurisdiction in a court, of chancery to recover the amount of John Piercy’s bond, by alleging that the bond had been lost or mislaid. But for that allegation, even if that in an original bill would have been sufficient, the court could not have taken jurisdiction of the cause. The prayer of the original bill is, that th,e trust-property be sold to pay the Beckett bond; and the prayer of the amended bill is, that the Piercy lost bond be paid out of his personal or real property.
The court below declined to pass upon the demurrer to the amended bill, but upon the final hearing, waiving the consideration of the demurrer upon the proofs, dismissed the bill as to the debt supposed to have been evidenced by the lost bond of John Piercy, Jr., alleged to have been executed to his father, and retained the bill as a creditor’s bill, and is waiting to administer in this cause upon the estate of John Piercy Jr., deceased. Thus we have the singular history of a chancery suit, instituted against James M. Beckett and others to enforce the lien of a trust-deed executed by said Beckett, the plaintiff abandoning that object entirely, and amending his bill for the purpose of collecting from the estate of John Piercy, Jr., the amount of a lost bond alleged to have been made by him to his father, and the bill dis
For the foregoing reasons, the decree of the 22d day of June, 1876, is reversed with costs to the appellees, the partiessubstantially prevailing, to be paid by the said George Piercy, executor, out of the assets of his testator in his hands to be administered ; and this Court proceeding to render sucha decree as the circuit court ought to have rendered, the demurrer to the amended bill is sustained, and the original and amended bills dismissed ; and it is ordered, adjudged and decreed, that the defendants recover of said George Piercy, executor &c., their costs, to be paid by said executor out of the assets of his testator in his hands to be administered.
Decree Reversed.