Wooddy v. Jamieson

40 P. 61 | Idaho | 1895

MORGAN, O. J.

(After Stating the Facts.) — From these affidavits it appears that an oral contract was made between the parties for the sale of certain real estate by defendant to the plaintiff, on which plaintiff paid defendant the sum of $603.68, and went into possession of the land, agreeing to give notes and mortgage for balance due. As appears by these affidavits the balance due was not paid, nor were notes and mortgage given to secure it. The defendant alleged in his affidavit that he executed and tendered to the plaintiff herein a good and sufficient warranty deed for the premises so contracted to be sold. It was also agreed that the plaintiff should enter into immediate possession of the premises; that he did so enter into possession, and held the same. The defendant further states that the plaintiff voluntarily surrendered the possession and whatever lien he had upon the premises to the defendant. The plaintiff in his affidavit admits the .making of the oral agreement between the defendant and himself 'for the purchase of the premises, and that he paid the $603.68 in pursuance of said agreement, and took possession of the premises, but denies that the defendant at any time made or tendered the plaintiff a warranty deed or any kind of a deed, and alleged that he (the plaintiff) surrendered the possession of the premises to the defendant at his request, he (defendant) representing at the time that he had sold the premises to another party; that he would pay plaintiff whatever sum he was out on said premises. The other affidavits, to some extent, corroborate the statements of the principals in the matter of the tender of the deed. However that may be, the material question to be considered by the court is as to whether at the time of the bringing of the suit the plaintiff held any security or pledge of personal or real estate for the payment of the money claimed to be due from the defendant to the plaintiff. Upon this material point the plaintiff and defendant seem to practically agree — the defendant alleging that the plaintiff surrendered the real estate to him for the reason that he (plaintiff) feared that if he took a deed to the property his creditors would seize it upon his debts, while plaintiff claims that he surrendered the property to the defendant at his (defendant’s) request, defendant claiming that he had sold the property to another party. So far as the question at issue before this court is concerned, it would seem to be immaterial as to whether the property was surrendered by the plaintiff to defendant upon either the one excuse or the other. The only point in the case is, Did the plaintiff hold the security, as before stated, when the suit was commenced? Evidently he did not, the property having been delivered up before that time and received by 'defendant. It follows, therefore, that upon the facts alleged in the complaint and shown by the affidavits the plaintiff was entitled to his attachment.

The contention of the appellant that the filing of an amended complaint renders the original complaint functus officio as a pleading, and takes the place of the original, and by relation dates back to the time of the filing of the original complaint, is correct. The amended complaint supersedes the original when purporting to contain a complete statement óf the cause of action, and becomes the complaint upon which the cause is to be tried. (See People v. Hunt, 1 Idaho, 433; Barber v. Reynolds, 33 Cal. 497; McFadden v. Mining Co., 8 Nev. 57.) Judgment of the court below dissolving the attachment is re-versed, and the cause remanded for further proceedings.

Huston and Sullivan, JJ., concur.