Anthony v. Slayden

• Decision Date: 05 February 1900
• Parties: ANTHONY v. SLAYDEN et al.
• Court: Colorado Supreme Court

60 P. 826

27 Colo. 144

ANTHONY v. SLAYDEN et al.

Supreme Court of Colorado

February 5, 1900

Appeal from district court, Arapahoe county.

Action by Scott J. Anthony against Emma C. Slayden and others. From a judgment dismissing the action, plaintiff appeals. Affirmed.

T. J. O'Donnell and Milton Smith, for appellant.

R. D Thompson, C.J. Blakeney, Wm. M. Maguire, Wm. R. Barbour Joshua Grozier, Benedict & Phelps, and Horace Phelps, for appellees.

CAMPBELL C.J.

Emma C. Slayden, one of the defendants and appellees, owned certain real estate in Denver, which she agreed to plat into city lots, and sell to Scott J. Anthony the appellant and plaintiff. After they were conveyed to him discovering that the terms of the contract of sale were not kept, he brought this action. In the original complaint he specifies the particulars wherein his grantor failed to observe the contract, and claims damages for its violation. He then sets forth that about three years after he received the deed from Mrs. Slayden, and while he was non compos mentis, she, her husband, and other persons to him unknown, by fruad and artifice, and as a result of a conspiracy, and without any consideration, procured from him a deed of conveyance to his wife of certain of the lots, and another deed therefor from his wife to Mrs. Slayden; and that thereafter Mrs. Slayden conveyed some of them to divers persons, who are joined as defendants in the action. He prays for a money judgment against Mrs. Slayden for damages sustained by reason of her failure to carry out her contract of sale, and also for damages resulting from the fraud and conspiracy charged, and asks that the pretended deed from him to his wife and the various subsequent ones mentioned, in so far as they purport to convey any title from him, and in so far as the grantees thereunder rely upon any covenant of warranty contained in his deed, be set aside, and, upon the reconveyance of the lots to Mrs. Slayden, that the money judgment sought to be obtained against her be decreed to be a lien upon them, and that the lien be foreclosed. To this complaint the different defendants interposed their several demurrers, based upon numerous grounds, not necessary here to mention, which were sustained, and the plaintiff took leave to plead over, and filed what is denominated in the record the first amended complaint. To conform to the court's ruling, it was in some respects different from the original complaint, but the object of the plaintiff in both was the same, viz. to recover a money judgment against Mrs. Slayden, and impress the property with a lien to secure its payment. This pleading was demurred to by the defendants upon substantially the same grounds that were interposed to the original pleading, and the demurrers were sustained, and plaintiff given time within which to elect as to whether he would stand by his amended complaint. Thereafter, though not within the time fixed, and without obtaining a specific order of the court therefor, plaintiff tendered for filing what is called the second amended complaint, to the filing of which defendants made oral objections, which were afterwards reduced to writing. The court sustained certain of the objections, refused to permit the pleading to be filed, and entered a judgment dismissing the action, from which plaintiff appealed.

The second amended complaint contained none of the allegations of the former pleadings relating to the so-called first cause of action for damages resulting from the breach of the contract of sale. It alleged the conspiracy and fraud in procuring from plaintiff the deed to his wife, and the subsequent deeds that are set out in the so-called second cause of action, which both of the prior pleadings contained, and, because of that fraud, asked that the deeds be set aside, and the plaintiff's title restored to him. Certain technical reasons are urged by some of the defendants in support of the ruling below on plaintiff's application to file the second amended complaint, which are, in the light of the facts, not tenable. True it is that it does not appear either that plaintiff gave to the defendants written notice of his application, or that an order of court was made giving him leave to amend. But the defendants were in court when the application to file was presented, and interposed no objection of want of notice, and they cannot now be heard to say that notice was not given. Strictly speaking, granting time to a party, against whom a demurrer has been sustained, to elect whether he will stand by the pleading attacked or amend, is not equivalent to an order permitting the filing of an amendment. But, so far as a decision here is concerned, we may treat plaintiff's tendering of the second amended complaint as an application for, and the court's ruling upon it as a denial of, leave further to amend; or regard that pleading as having been filed in pursuance of a previous order to that effect, and defendants' objection thereto as a motion to strike or a demurrer. In either case we are clear that the ruling of the court was right, and we may waive strict compliance with the Code if an order for such an amendment must be based on a motion and notice to the opposite party; and if, in any respect, the trial court failed strictly to pursue the course marked out by the Code, no error prejudicial to the defendants intervened.

The appellant contends that the right to amend a complaint when a demurrer to it is sustained is absolute, and the number of such amendments is limited only by the number of demurrers sustained; while the defendants maintain that after the trial of an issue of law upon a demurrer to a complaint the plaintiff may amend only by leave of court, and upon such terms as are just. Sections 73, 74, and 75 of the Civil Code are germane. By section 73, after a demurrer, and before the trial of the issue of law therein, the pleading demurred to may be once amended as of course, provided the party making the amendment does certain designated things. Section 74 reads: 'When a demurrer is decided, either in term time or vacation, the court or judge shall immediately cause the decision thereof to be entered in the record, and may proceed to final judgment thereon in favor of the successful party, unless the unsuccessful party shall plead over or amend upon such terms as may be just, and the court or judge may fix the time for pleading over and filing amended pleadings; and if the same be not filed within the time so fixed, judgment by default may be entered as in other cases.' The plaintiff contends that the clause therein, 'unless the unsuccessful party shall plead over or amend,' is equivalent to granting to the unsuccessful party the absolute right of amending ad libitum, and the court, when requested, must make the necessary order, and that only the time and the terms are discretionary with it. We think not. The main purpose of this section is to prescribe the duty of the court of judge when a demurrer is decided. The incidental reference to the contingency where the unsuccessful party pleads over does not confer upon the latter an absolute right of amendment. This right, recognized in this section, is really derived from, and governed by, section 75, which provides that the court may, in furtherance of justice, and on such terms as may be proper, allow amendments; and, when the entire opinion in Insurance Co. v. Redfield, 6 Colo.App. 190, 40 P. 195, is considered, there is nothing inconsistent with this conclusion. But, whether it be given by section 74 or section 75, or by both, the right to amend any pleading, except in the case specified in section 73, is discretionary with the trial court, and it is necessary to obtain an order of the court or judge therefor, whether or not upon notice depending upon whether or not the motion is made during the progress of the trial of the law issue; and unless it clearly appears that such discretion is abused, a court of review will not interfere. To this effect are the decisions of this court, the court of appeals, and other tribunals under similar statutes. Dyer v. McPhee, 6 Colo. 174, 194; Buddee v. Spangler, 12 Colo. 216, 20 P. 760; Cascade Ice Co. v. Austin Bluff Land & Water Co., 23 Colo. 292, 47 P. 268; Corson v. Neatheny, 9 Colo. 212, 11 P. 82; Buckley v. Howe, 86 Cal. 596, 25 P. 132; 8 Enc. Pl. & Prac. 362 et seq., 463; Nethercott v. Kelly (Super. N.Y.) 5 N.Y.S. 259; Jenn v. Spencer, 32 Tex. 657; Balch v. Smith, 4 Wash.

497, 30 P. 648; Insurance Co. v. Redified, supra; Boettcher v. Bank 15 Colo. 16, 20, 24 P. 582; Cooper v. Hunter, 8 Colo.App. 101, 44 P. 944. It is said, moreover, that it is contrary to good practice to permit objections to be made in advance to the filing of an amended pleading; that the court should allow it to be filed, and require the opposing party to move to strike, or to demur. Either method is proper. King v. Rea, 13 Colo. 69, 21 P. 1084; Busch v. Hagenrick, 10 Neb. 415, 6 N.W. 474; Wheeler v. West, 78 Cal. 95, 20 P. 45; Turner v. Roundtree, 30 Ala. 706; Wade v. Clark, 52 Iowa 158, 2 N.W. 1039. Substantial reasons other than technical rules of practice or pleading exist for affirming this judgment. If, in this state, as seems to be the rule in some jurisdictions, the right to amend were absolute (which we have just denied), a plaintiff may not, against the objection of the defendant, set up a new cause of action by way of amendment; and in no case that we have found, where a plaintiff has elected one of two inconsistent remedies, has he been permitted thereafter, by way of an amendment to his complaint or otherwise, to choose the other. Cole v. Smith (Colo. Sup.) 58 P. 1086, and authorities cited; Givens v. Wheeler, 6 Colo. 149; Railway Co. v. Sternberg, 13 Colo....