Berry v. Barton

• Citation: 1902 OK 67,12 Okla. 221,71 P. 1074
• Court: Oklahoma Supreme Court
• Decision Date: 02 September 1902
• Parties: T. N. BERRY AND JENNIE BERRY v. L. F. BARTON AND W. E. BERRY.

1902 OK 67

71 P. 1074

12 Okla. 221

T. N. BERRY AND JENNIE BERRY v. L. F. BARTON AND W. E. BERRY.

Supreme Court of Oklahoma

Decided: September 2, 1902

Error from the District Court of Payne County; before John H. Burford, Trial Judge.

Syllabus

¶0 PRACTICE--Demurrer--Error Waived, When--Judgment on Pleadings. When a demurrer is sustained to a pleading, and the pleader thereupon takes leave to amend, he thereby waives the error, if any has been committed, in sustaining such demurrer. In order to take advantage of a ruling on a demurrer when such demurrer is sustained, the party must stand upon his pleading held to be defective, and not amend. When a party executes a note payable to a person named therein or to his order, and then fails to pay the same at maturity, and the payee files his petition reciting the execution of the note by the maker to the plaintiff, for a valuable consideration, and the fact that defendant has defaulted, ownership is presumed in the plaintiff, from the facts pleaded; and it is not absolutely necessary for him to formally allege that he is still the owner and holder of such note; and an answer which denies that such plaintiff and payee is the owner and holder of such note sued on, and alleges that he is not the real party in interest, states no defense, and the plaintiff is entitled to Judgment on the pleadings.

Robert A. Lowry and Herod & Widmer, for plaintiffs in error.

F. C. Hunt, for defendants in error.

BURWELL, J.:

¶1 On February 1, 1897, Thomas N. Berry and Jennie Berry executed and delivered to L. F. Barton their certain promissory note for $ 500.00 due December 1, of the same year, with interest from date at the rate of 12 per cent per annum. On February 6, 1897, the same parties executed and delivered to L. F. Barton another note for $ 50.00 due 12 months after date without interest. Barton the payee of the notes, on August 26, 1898, neither of the notes having been paid, commenced suit against the makers thereof in the district court of Payne county. The petition was in the ordinary form. To this petition the defendants filed their joint answer, which, omitting the caption, was in the following language:

"The defendants above named for their answer to the plaintiff's petition and to each cause of action therein stated, say: (1) They and each of them specifically deny that the plaintiff is the owner and holder of the notes sued on or either of them, and alleged that the said plaintiff is not the real party in interest. (2) For a further and second defense to said action defendants say that the defendant, Jennie Berry, is only security on said notes, and that there is another action pending in this court, wherein William E. Berry is plaintiff and the plaintiff L. F. Barton, and one Mary J. Barton are defendants. That in said action, the defendant in this action, Thomas E. Berry, has been joined in a suit with the plaintiff in this action, and one Mary J. Barton, and garnisheed as a debtor of the said Mary J. Barton, and is and has been thus prevented from paying the said notes and of this the plaintiff had full knowledge before the beginning of this action. That defendant has filed answer in said suit as required by law. That said action is numbered 702, and was pending in this court, as plaintiff well knew, when he commenced this suit. Defendants further aver that the ownership of the notes sued on in this action, and the indebtedness thereby extended, is the property of Mary J. Barton, and has been so found and adjudged by this court, and a judgment rendered by this court, that the defendant, Thomas N. Berry pay the amount sued on in this action to W. E. Berry, the plaintiff in cause No. 702, a copy of which order and judgment is herewith filed and made a part hereof. Wherefore defendants pray judgment for their costs."

¶2 Plaintiff filed his demurrer to the second defense for the reason that it did not constitute a defense to plaintiff's cause of action or to either of them. The court sustained the demurrer, and entered the following journal entry:

"Now on this 4th day of October, 1899, the same being one of the days of the regular October, 1899, term of said court, the above entitled action came regularly on to be heard, upon the demurrer filed by the said plaintiff to the answer of the defendants filed herein, the plaintiff appearing by F. C. Hunt, his attorney, and the defendants appearing by R. A. Lowry, their attorney. And the court, after examining the papers involved in said hearing, and being fully advised in the matter by the arguments of counsel and the law of the case, finds that the said demurrer is well taken, and should be maintained. It is therefore, by the court, ordered that the said demurrer of the plaintiff to the answer of the defendants be, and the same is hereby sustained and defendants are given until November 1, in which to file an amended answer."

¶3 The defendants insist that this journal entry sustains the demurrer to the entire petition, and therefore error was committed by the trial court. There is nothing whatever in this contention. The demurrer was directed to one defense only, and while the journal entry sustains the demurrer to the answer in general terms, yet the demurrer, by the express language contained therein, is limited to the second defense alone. There was no demurrer to the first defense, and therefore it cannot be presumed that the court intended to extend the one filed to the second defense and sustain it to the first. Plaintiff made no objection to the general denial, and the court had in mind only the second defense when it passed upon the demurrer. It is also contended by the defendants that the court erred in sustaining the demurrer interposed by the plaintiff, even as against the second defense. It is not necessary to decide in this case as to whether the second count in the answer stated a defense, for the reason that when the demurrer was sustained the defendants were granted leave to amend, and, by taking leave to amend, they waived the error, if any, in the sustaining of the demurrer. In order to take advantage of the ruling on a demurrer when it is sustained, the party must stand upon his pleading held to be defective, and not amend. While there are cases the other way, the great weight of authority supports this doctrine. (Kingman & Co. v. Pixley, 7 Okla. 351, 54 P. 494; Young v. Martin, [U. S.] 8 Wall. 354; Zimmerman v. Gaumer [Ind.] 53 N. E. 829; Simpson v. Texas Tram & Lumber Co. [Tex.] 51 S.W. 655; Chicago & A. R. Co. v. Pearson, 82 Ill. App. 605; German v. Bennington and R. R. Co. [Vt.] 42 A. 972; Hagley v. Hagley [Cal.] 9 P. 305; Chicago C. C. & St. L. Ry. Co. v. Bozarth, 91 Ill. App. 66; Mitchell v. Smith, 74 Conn. 125, 49 A. 909; Anthony v. Slayden [Col.] 60 P. 826; City of Huntington v. Cast [Ind.] 56 N.E. 949; Ellinger v. City of Baltimore, [Ind.] 45 A. 884; Louisville & N. R. Co. v. House [Tenn.] 56 S.W. 836; Geizer Mfg. Co. v. Kingman [Ia.] 82 N.W. 938; Phoenix Ins. Co. v. Belt Ry. Co. [Ill.] 54 N.E. 1046; Brown et al. v. J. I. Case Plow Works, [Kan.] 59 P. 601; Scheiber v. U.S. Telephone Co. [Ind.] 55 N.E. 742.)

¶4 But it is argued that in this case, the defendants did not plead over, and therefore they are in a position to urge as error the sustaining of the demurrer. This position cannot be sustained. It is true that nearly all of the cases state that, by pleading over after a demurrer has been sustained, a party waives the error, if any has been committed by the court in such ruling. The rule not only applies where the party actually pleads over, but also where he takes leave to plead over after a demurrer has been sustained to his pleading. It is the intention of the party as indicated by his acts, at the time, which fixes his standing in court. By taking leave to amend he thereby indicates his intention to abandon his former position and to draft his pleading upon a different theory, or to state his cause of action in different language. By taking leave to amend, he admits the insufficiency of the pleading, and he is bound by his own conduct, and cannot afterwards take advantage of it. Any other rule would permit delays under the guise of a desire to submit to the ruling of the court and amend, when in fact the party had no intention of amending. Courts everywhere insist upon such rules of practice and conduct of parties litigant as will promote justice and such as will not encourage or countenance deception. The attorney is supposed to know the law of his case equally as well as the court, and inasmuch as the statute, with the permission of the court, allows a party at his own election to amend or stand on his pleading, it is only fair that he should make his election and then be bound by it; and if he elect to amend, he cannot afterward, simply because his own views of the law may have changed, or further investigation convinced him that his former position was correct, urge error in a ruling which he had accepted as the law. When he elects to amend he abandons, not necessarily his view of the law as urged against the demurrer, but that particular pleading, and it is just the same as though it had never been filed, and a party who expressly abandons a pleading cannot at his own election, without permission of the court, urge it as an existing pleading in the case. These views are supported by the authorities, as will be seen from a few cases from which we will quote:

¶5 Brown et al. v. J. I. Case Plow Works, (Kan.) 59 P. 601; "Error, if any, in sustaining a demurrer to an amended answer, is waived by filing a second amended answer."

¶6 Phoenix Ins. Co. v. Belt Ry. Co. Chicago, Ills. 54 N.E. 1064; "Where a party desires a review on an appeal of a ruling on a demurrer, he must abide by the demurrer."

¶7 Anthony v. Slayden, (Col.)60 P. 826: "Another point appellant makes is that the order overruling the demurrer to the first amended complaint is now open to review. While conceding the general...