49 P. 978 | Or. | 1897
after making the foregoing statement, delivered the opinion of the court.
In Brown v. Leigh, 49 N. Y. 78, the original complaint was to compel the determination of conflicting claims to real property, but under a statute providing that any pleading may be once amended by the party of course without prejudice to proceedings already had, the plaintiff served an amended complaint which set forth a cause of action in ejectment. This was stricken out on motion, upon the ground that it embraced a new and different cause of action from that set forth in the original complaint. Prom this order
It follows, we think, that it is within the power of the trial court to allow, before trial, an amended complaint to be filed containing a new cause of action or suit material to the subject matter of the controversy then before the court. A plaintiff cannot, of course, abandon his original cause of action or suit, and substitute an entirely new and different one, because in such case the new pleading would not be an amendment, but a substitution for the original. But so long as the amendment is germane to the subject matter of the controversy, we can see no objection to the court, in the exercise of a sound discretion, allowing the pleadings to be amended in furtherance of justice by inserting new and additional allegations material to such controversy, although they may, in effect, constitute a new cause of action or defense. That this is the intention of the statute is, it seems to us, made manifest from the latter clause of the section under consideration, which specially restricts the amendments made on the trial to such as do not substantially change the cause of action or defense. This construction is in harmony with the rule governing the allowance of amendments, which has in view the determination of the actual controversy with as little expense and delay as possible. “While the parties are in court,” says Chief Justice Strahan, “they ought to be permitted to shape their pleadings in such form as they may be advised, so as to present
Be VERSED,