Adams v. Webb

• Decision Date: 04 March 1924
• Docket Number: 12921.
• Citation: Adams v. Webb, 230 P. 878, 104 Okla. 180, 1924 OK 253 (Okla. 1924)
• Parties: ADAMS v. WEBB et al.
• Court: Oklahoma Supreme Court

230 P. 878

104 Okla. 180, 1924 OK 253

ADAMS v. WEBB et al.

No. 12921.

Supreme Court of Oklahoma

March 4, 1924

Rehearing Denied Nov. 25, 1924.

Syllabus by the Court.

The filing of an amended petition before answer is an absolute right, under Comp. St. 1921, § 315, but, where such a pleading is challenged by motion to strike, the substance rather than the title of the pleading determines its right to be filed, and, where an examination discloses that such amended petition sets up a cause of action which arose subsequent to the filing of the original petition, it will be construed to be a supplemental petition under Comp. St. 1921 § 323, rather than an amendment under section 315.

In such case the action of the trial court in striking such amended petition is not an appealable order because, being in fact a supplemental instead of an amended petition, the original petition continues to perform its functions of presenting questions upon which issues may be joined by demurrer or answer.The action on the motion to strike is at most an error reviewable on appeal after final judgment on the merits.

Commissioners' Opinion, Division No. 1.

Appeal from District Court, Logan County; C. C. Smith, Judge.

Action by H. M. Adams against W. L. Webb and another.From an order striking amended petition from the files, plaintiff appeals.Remanded, with directions.

H. M Adams, of Guthrie, for plaintiff in error.

John Adams, of Guthrie, for defendants in error.

LOGSDON C.(after stating the facts as above).

The only question presented by this proceeding is whether the trial court erred in sustaining the motion of the defendant to strike the amended petition of the plaintiff from the files of said cause.

By Comp. Stat. 1921, § 315, it is provided:

"The plaintiff may amend his petition without leave, at any time before the answer is filed, without prejudice to the proceedings; but notice of such amendment shall be served upon the defendant or his attorney, and the defendant shall have the same time to answer or demur thereto as to the original petition."

This statute has been passed upon by this court, so, if the language of the statute itself were susceptible of two constructions, that which has been adopted in this state is well defined.In Willis et al. v. Cochran et al.,66 Okl. 257, 168 P. 658, it is said:

"Such right to amend is absolute, and it is reversible error for the trial court to strike such amended petition from the files."

In Hocker v. Rackley,90 Okl. 83, 216 P. 151, this court said:

"The right of plaintiff to amend his petition before answer is an absolute one, and the plaintiff may plead an additional cause of action, relating to the same subject-matter."

It is thus seen that plaintiff had an absolute right to file an amended petition, without leave of the court, at any time before answer was filed.But was this pleading really an amended petition?It was based upon a curative tax deed issued to plaintiff, subsequent to the filing of his original petition, and for the purpose of curing possible formal defects in the original deed.Comp. St. 1921, § 323 provides:

"Either party may be allowed, on notice, and on such terms, as to costs, as the court may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply."

To file a supplemental petition, leave of court is necessary, and the action of the court thereon is discretionary.Wade v Gould,8 Okl. 690, 59 P. 11;Reader v. Farriss,49 Okl. 459, 153 P. 678, L. R. A. 1916D, 672.Whether such a pleading is amendatory or supplemental must be determined from its substance rather than from the title given it by the pleader.State ex rel. Morrison v....