11 Iowa 66 | Iowa | 1860
What is meant by the objection that this pleading did not conform to the rules relating to supplemental petitions, we have no means of ascertaining. No rule upon the subject has been brought to our attention, and we can not therefore say that this objection has weight or any thing to sustain it.
It is doubtful whether appellees insist upon the point that the additional facts stated should have been set up in a supplemental, rather than an amended petition. In one part of the argument they seem to rely upon it, while in another they maintain that whatever styled or called, the motion was properly sustained, their main point being that either as a supplemental or amended petition it was defective and out of place, for the reason that it was not based upon facts existing at the time of the commencement of the action. We incline to the opinion that the new matter contained in this pleading, would come more appropriately in a supplemental pleading. It is more properly the office of an amended petition, to connect the original in those matters which existed previous to the commencement of the action. A supplemental petition on the other hand, while it avails to add to the original, in its frame or structure, yet its more appropriate office is to introduce into the case, matter which has happened since the filing of the original petition. And when the statute (Code section 1749) says that cither parly may file a supplemental pleading alleging any material facts which have come to his knowledge since the filing of the former pleading, we do not understand it to mean necessarily that the facts should have existed prior to the former pléa ding, but that they shall come to his knowledge after. If they did not exist before, of course they would come to his knowledge after. If existing before and they came to his knowledge after, or if they occured after, he may set them up as a supplemental pleading. And therefore if the decision in this case was made to depend upon the question, whether the matter stated by the pleader should have been in a supplemental rather than an
We proceed then to the examination of the second point made by the motion, and that is that the amendments are predicated upon facts occurring since the commencement of the action. By reference to the case as reported in 6 Iowa 199, it will be found that the facts as they then existed were briefly these, One of the defendants residing in Ohio sent to an attorney residing in Kentucky, certain notes for collection. He, for reasons stated, instituted suit on these notes in his own name and recovered judgment. To make the money, he had to proceed in Chancery against the defendant William Downing, as the result of which he made the judgment and paid it over to defendants. Subsequent to this, Selim Downing, by bill in chancery, asserted a prior claim to the property sold under the judgment against William and succeeded, Trottér, plaintiff’s intestate, and the attorney to whom one of the defendants sent the notes, being compelled to pay back what he had received. Thus the transaction stood when this action commenced. We held in the former case as against many and the main points urged by defendants in their demurrer to the petition, plaintiff was entitled to recover, but that it ought to appear that Trotter or his administrator had assigned to defendants or surrendered to their control the judgment against William Downing, and that they should not be put to the expense of setting aside the entry of satisfaction thereon, in virtue of the proceedings in equity instituted by Trotter against said William. Eor the purpose of meeting the views thus expressed the plaint
We think most clearly they may. The question of costs in all such cases, being under the control of the large discretion lodged in the Judge, that what may not come in by way of amendment or supplemental pleading is the exception under our Code, and that which may forms the rule. This view we have had occasion so frequently to express, and seems to be so entirely in accordance with the letter as well as spirit of the Code, that we need do no more at this time than re-affirm it. (See Code section 1733-5, 1749, 1751-9, Harkins v. Edwards, 1 Iowa 296; Ib. 128; Bebb v. Preston, 3 Ib. 325; 1 Ib. 482; Bunn v. Pritchard, 6 Ib. 56; Arbuckle v. Bowman, Ib 70; Logan v. Tibbett, et al., 4 G. Greene 389; Wilson v. Johnson, 1 Ib 147; Stevens v. Campbell, 6 Iowa 538, 433.)
But say appellees, is this rule to be carried so far as to introduce new matter that occurred since the commencement of the action, or as in this case, that which the plaintiff has done since, and without which he could not maintain his action? And in this connection he asks, suppose goods came rightfully into the possession of B. and before A. can bring trover for them, a demand is necessary, can A bring his action, make his demand afterwards, amend his pleading, setting up this demand, and be permitted to proceed with his cause ? Or must he not, continues the inquiry, go out of court and begin anew, if he would recover the possession of the property?
Now let us ask, if proper orders are made on the subject of costs, and the time for the hearing of the case is so arranged as not to take the defendant by surprise, so as to give him full and ample time to prepare for trial, why not permit the amendment? What provision of the Code is there, or what is there deducible from its whole tenor and spirit, which justifies the practice which shall turn a plaint
In our opinion, therefore, plaintiff was entitled to amend his petition in the particulars stated; and in striking the same from the files and dismissing the suit, there was error.
Judgment reversed.
