Good v. Second Judicial Dist. Court In and For Washoe County

• Decision Date: 24 January 1955
• Docket Number: No. 3841,3841
• Citation: 279 P.2d 467,71 Nev. 38
• Parties: Pearl GOOD, as Administratrix of the Estate of Jack K. Good, Deceased, and as an Individual, Petitioner, v. The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF WASHOE, Respondent.
• Court: Nevada Supreme Court

Page 467

279 P.2d 467

71 Nev. 38

Pearl GOOD, as Administratrix of the Estate of Jack K. Good Deceased, and as an Individual, Petitioner, v. The SECOND JUDICIAL DISTRICT COURT of the State of Nevada in and for the COUNTY OF WASHOE, Respondent.

No. 3841.

Supreme Court of Nevada.

Jan. 24, 1955.

Stewart & Horton, Reno, for petitioner.

C. Lester Zahniser, Sparks, for respondent.

BADT, Justice.

Petition for certiorari to review certain orders of the respondent court in a trial de novo from the justice's court allowing certain amendments to the plaintiff's complaint, which petitioner alleges were without the jurisdiction of the district court to make.

A claim was filed in the matter of the estate of Jack K. Good, deceased, by claimant named as 'A & S Machine Shop', to which was attached a statement naming the creditor as 'A & S Machine Shop Frank S. Saunders'. The verification of the claim was made by Frank S. Saunders on the printed form furnished by the clerk reciting, 'the undersigned being duly sworn, says that he is the creditor named in and who makes the foregoing claim * * *'. The claim was for $192.50, comprising $189 labor and $3.50 material in the furnishing of a 'ladder hook'. The hours comprising the labor were itemized as to dates, amounts, etc. The claim was rejected by the administratrix and suit on the rejected claim was filed in the justice's court of Sparks township by 'Frank S. Saunders, dba A and S Machine Shop vs. Pearl Good, as Administratrix, etc.'. The plaintiff alleged that he was the owner of the A & S Machine Shop and had filed a certificate of doing business under a fictitious name as required by statute. He alleged the furnishing of the labor and the material to the decedent by the plaintiff and the filing and rejection of the claim against the administratrix. The justice of the peace entered judgment for the defendant administratrix, including an attorney fee of $75. After the appeal was lodged with the district court the petitioner herein took the deposition of Frank S. Saunders, who testified (in reduction to narrative form) as follows: 'I own the A & S Machine Shop. It is a corporation, a family affair, father, son and mother. I am the manager, the resident agent, I am responsible. I bought it as a corporation from Mr. Shelley, lock, stock and barrel, everything. I bought everything, all outstanding stock all machinery and everything. The corporation has operated as a corporation ever since I purchased it. Q. Was the work and labor described in your complaint done by the machine shop as a corporation? A. You mean were we under a corporation when we performed this work? Q. Yes, A. Yes. It has been in force, never let off.' Following such deposition, defendant administratrix moved for a summary judgment. The court denied the motion, ordered that the complaint be amended by substituting the corporate plaintiff for Frank S. Saunders as an individual, and granted the motion of the plaintiff to amend and correct the creditor's claim and the affidavit supporting the same to show the claimant as A & S Machine Shop, a corporation. Unless such orders are annulled by this court, the respondent district court will proceed to try the case de novo on such appeal, and upon such amended complaint based upon the rejected creditor's claim as amended.

Petitioner contends that the district court had no jurisdiction to permit the amendment on appeal, (1) because there was no showing of a change of circumstances, (2) because the same resulted in the statement of a new cause of action, (3) because the amendment substituting parties on appeal brought in a party not a successor in interest to the substituted party and one not asserted to be affected by the judgment appealed from, (4) because the substitution was made after expiration of the time within which an appeal from the justice's court could be taken, and (5) because the amended claim filed in the estate proceeding was after expiration of time for filing of claims and resulted in the statement of a new claim. It is our opinion that these assertions of lack of jurisdiction are all without merit.

Relying on Paul v. Armstrong, 1 Nev. 82, (reprint, 1-2 Nev. 70), petitioner contends that in a trial de novo in the district court upon an appeal from a justice's court the issues 'must be the same as those tried in the court below', ¹ and that in the instant case such issue was changed to a suit by a corporate plaintiff on a rejected corporate claim for work and labor furnished by a corporation from a suit by an individual plaintiff on an individual claim for work and labor furnished by an individual. The liberality of our applicable statutes and rules of civil procedure as applied to the recited facts leads us to the conclusion that these contentions are not tenable. Section 9882.121, N.C.L.1931-41 Supp., which describes the nature of the claim to be filed against a decedent's estate, contains the following sentence: 'The court may, in its discretion, for good cause shown, allow a defective claim or affidavit to be corrected or amended on application made at any time before the filing of the final account.' The record does not indicate that the final account has as yet been filed. As to whether the amendment results in the statement of a new claim beyond the purview of permitted amendments and corrections, we feel that this is governed by our conclusions hereinafter stated with reference to the amendment of the complaint. And unless the nature and character of the claim are substantially changed, there would appear to be no good reason why the amendment should not have been permitted. Kirman v. Powning, 25 Nev. 378, 60 P. 834, 61 P. 1090.

Prior to the effective date of the new rules of civil procedure, N.R.C.P., amendment of pleadings was largely governed by the provisions of § 8640, N.C.L.1929. This section read in part: 'The court may, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, and may upon like terms enlarge the time for an answer, reply, or demurrer, or demurrer to an answer or reply filed. The court may likewise, upon affidavit showing good cause therefor, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars * * *.' The liberality of permitting amendments under this section was in some cases limited by holdings to the effect that a new and different cause of action could not be substituted through such amendment, and that an absolute substitution of indispensable parties could not be permitted thereby. Amendment of pleadings is now governed by the applicable sections of N.R.C.P., in whose construction we are aided by the interpretation of the federal courts of corresponding sections of the federal rules of procedure.

Rule 21, N.R.C.P. concerning misjoinder and nonjoinder of parties reads:

'Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.'

Rule 15(a) concerning amended and supplemental pleadings provides, first, when the pleading may be amended as of course and then provides: 'Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.' Subdivisions (b), (c) and (d) of this rule evidence even greater liberality of amendment.

In Paper Container Mfg. Co. v. Dixie Cup Co., 74 F.Supp. 389, a proceeding was brought in the U. S. District Court for the District of Delaware under R.S. § 4915 to obtain a patent after a decision by the Board of Interference Examiners. Under the facts the Reconstruction Finance Corporation, as assignee of the patent, was held to be an indispensable party. The plaintiff, as of course and before the filing of a responsive pleading, filed an amendment to the complaint under Fed.Rules Civ.Proc.Rule 15(a), 28 U.S.C.A., to bring in the R.F.C. as a party plaintiff. Defendant moved to strike the amendment, first, because it was not filed by leave of court as required by ...