Adams v. Webb

• Decision Date: 04 March 1924
• Docket Number: Case 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

1924 OK 253

230 P. 878

104 Okla. 180

ADAMS v. WEBB et al.

Case Number: 12921

Supreme Court of Oklahoma

Decided: March 4, 1924

Commissioners' Opinion, Division No. 1.

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

Action by H. M. Adams against W. L. Webb and Charley W. Lenhart, for possession of certain premises and to quiet title.From an order striking plaintiff's amended petition from the files, plaintiff appeals.Remanded for further proceedings.

This action was commenced by the plaintiffApril 28, 1921, by his filing a petition in the district court of Logan county in which he claims title and right of possession to lot 23 in block 37 in the town of Lockridge, basing his title upon a resale tax deed.After service of summons upon one of the defendants, and before any answer was filed, plaintiff, on May 20, 1921, filed an amended petition, of which filing he gave written notice to the attorney of record for the defendants.This amended petition did not adopt or refer to any of the allegations in the original petition but was complete in itself, and had attached thereto as an exhibit a curative deed intended to correct any formal defects existing in the original resale tax deed which was made an exhibit to the original petition.On May 23, the defendantCharley W. Lenhart, filed a general demurrer to the amended petition, but on June 17, 1921, by leave of court withdrew said demurrer and filed a motion to strike the amended petition from the files for the reason, as stated in said motion, "that the amendment set forth in said amended petition is based upon a new tax deed made, executed and delivered to the plaintiff by the county treasurer of said Logan county after the filing of this action and after the service of summons in this action upon this defendant, which new tax deed as set forth in said amended petition changes the issues in this action materially and to the prejudice of this defendant."On the same day the court entered its order sustaining the motion to strike the amended petition and this proceeding in error was commenced to review this action of the trial court.

Syllabus

¶0 1.Pleading--Petition--Amendment -- Supplemental Petition.

The filing of an amended petition before answer is an absolute right under Comp. Stat. 1921, sec. 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. Stat. 1921, sec. 323, rather than an amendment under section 315.

2.Appeal and Error--Appealable Orders -- Action on Motion to Strike Pleading.

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.

H. M. Adams, for plaintiff in error.

John Adams, for defendant in error.

Opinion by LOGSDON, C.

¶1 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.

¶2 By Comp. Stat. 1921, sec. 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."

¶3This 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 Okla. 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."

¶4 In Hocker v. Rackley, 90 Okla. 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."

¶5 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. Stat. 1921, sec. 323, provides:

"Either party may be allowed, on

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