Blake v. Minkner
| Decision Date | 23 January 1894 |
| Docket Number | 16,526 |
| Citation | 36 N.E. 246,136 Ind. 418 |
| Parties | Blake et al. v. Minkner et al |
| Court | Indiana Supreme Court |
From the Marion Circuit Court.
The judgment is affirmed.
W. F A. Bernhamer and W. N. Pickerill, for appellants.
G Carter, for appellees.
In appellants' complaint, filed in the Marion Circuit Court September 10th, 1890, partition was demanded of certain real estate situate in Indianola, an addition to the city of Indianapolis, which the appellants claim as the heirs at law of Eliza Blake, deceased, who had been the widow of James Blake, deceased, and Warren S. Blake, who had been a son of said James and Eliza Blake.
In the complaint it is alleged that in the years 1835 and 1842 James Blake acquired title to the real estate in controversy jointly, with James M. Ray and others, and that Blake and Ray bought out the other interests, and became equal owners of the real estate described. James Blake died intestate November 26th, 1870, and Eliza, his widow, died intestate May 27th, 1887.
The appellants claim an undivided one-half interest in said real estate, through their mother Eliza Blake, who, they contend, never parted with the interest which the statute gave her, as the widow of James Blake, deceased.
On the 3d day of November, 1890, the appellees filed their answer in four paragraphs, the first being the general denial, the second averring that the undivided interest of James Blake had been sold on execution levied on the same by virtue of judgments rendered against him for individual debts in 1858 and 1859, and bid in by his partner, James M. Ray, and by said Ray and his wife conveyed to the appellee August H. W. Minkner, in March, 1864; that, by virtue of the title thus acquired, appellees have held and enjoyed the same, and although the said Eliza Blake lived more than fifteen years after the death of her husband, she never asserted any title to said real estate, and, by reason thereof, it is claimed that appellants had no right of action.
In the third paragraph of the answer, it is alleged that said real estate was held by James Blake and James M. Ray, as partners, doing a real estate business under the firm name of "James Blake & Co.," and that the undivided interest of said James Blake was levied upon and bid in by his partner, James M. Ray, at a sheriff's sale, as partnership property, and that after said sale it was agreed between said Blake and said Ray that said Ray should sell the interest of said Blake, so bought in by him, and, after reimbursing himself for the amount paid for the same, he should apply any residue there might be in extinguishing the individual indebtedness of said James Blake to the partnership firm of James Blake & Co., and that this was done, and, on a final accounting between the members of said firm, it was found that after applying all the proceeds of such sale upon the individual liability of said Blake to said firm, he was still indebted to it in the sum of over six thousand dollars, which was never paid.
The fourth paragraph of the answer recites substantially the same state of facts as the third paragraph, and concludes with the averment that the interest of James Blake in the partnership real estate was applied in extinguishing his individual liability to the firm of James Blake & Co., and that by reason thereof his widow and children have no claim on the same.
The appellants demurred to the second, third, and fourth paragraphs of the answer, and the record shows that the demurrer was overruled as to the second paragraph, and is silent as to what disposition was made of the demurrers to the other paragraphs of the answer.
On the 5th day of January, 1891, the appellants, by leave of the court, filed an amended complaint in two paragraphs, but it was in ejectment, and asked judgment for the recovery of their alleged interest in said real estate and rent for the use thereof.
On the 26th day of January, 1891, the appellees answered the amended complaint in two paragraphs, the first being the general denial, and the second pleading the twenty years' statute of limitations, averring that more than twenty years had elapsed between the date of the death of James Blake and the filing of said amended complaint, on the 5th of January, 1891.
To this plea of the statute of limitations the appellants replied that the original and amended complaint stated the same cause of action, and that the only difference in the two pleadings was in the prayer for relief. To this reply appellees demurred, which demurrer was sustained by the court, and judgment rendered on the demurrer in favor of the appellees, and, on exceptions saved, the cause comes to this court.
If the plea of the statute of limitations is well taken, it disposes of the case. Appellee insists that it is, while appellant urges with equal earnestness that it is not well taken.
The original complaint was filed about two and one-half months before the twenty years had expired. It having been filed, as stated, on September 10th, 1890, while James Blake died November 26th, 1870. It will also be seen that the amended complaint was placed on the files twenty years and forty days after the cause of action accrued.
The question presented is, shall the appellees, in view of the record, be deprived of the benefit of the statute of limitations? In other words, shall the new pleadings relate to the filing of the original complaint? This must be determined by solving the question whether the amended pleadings introduce a new or different cause of action from that set up in the original complaint, and involving the statute in question.
Under our code, the greatest liberality is shown in permitting amendments to the original complaint, not only amendments thereto may be made, but an amended complaint stating a new cause of action may be filed. It is only where the amendment involves the statute of limitations that a different rule applies.
In 1 Am. and Eng. Encyc. of Law, p. 551, it is said:
"Generally speaking, an amendment to a complaint has relation to the time the complaint was filed; but this never occurs when such amendment sets up a title not previously asserted, and which involves the question of the statute of limitations." Lagow v. Neilson, 10 Ind. 183; School, etc., Monticello v. Grant, 104 Ind. 168, 1 N.E. 302 (171); Chicago, etc., R. R. Co. v. Bills, 118 Ind. 221, 20 N.E. 775 (223).
Buswell on Lim. (1889 ed.), section 364, states the rule thus: "The principle is that where the amendment does not change the cause of action nor deprive the defendant of any defense which he had to the original suit, the plaintiff's right shall be preserved."
He also says: "The amendment of the declaration so as to state for the first time a cause of action is equivalent to bringing a new suit as of the date of the amendment, notwithstanding the original declaration was filed within the statute period."
The rule laid down by the Illinois court is thus stated, viz: Illinois Central R. R. Co. v. Cobb, etc., 64 Ill. 128; North Chicago, etc., Co. v. Monka, 107 Ill. 340; Phelps v. Illinois Central R. R. Co., 94 Ill. 548.
To the same effect we cite King v. Avery, 37 Ala. 169 (173), as follows: "We think the rule must be regarded as settled by the authorities, that if, during the pendency of a suit, any new matter or claim not before asserted is set up and relied on by the complainant, the defendant has a right to insist upon the benefit of the statute, until the time the new claim is presented."
It is said in Bliss' Code Pleading, section 429:
In Reeder v. Sayre, 70 N.Y. 180 (190), the matter is stated tersely thus: "The real limitation to it seems to be that the amendment shall not bring in a new cause of action."
Heard's Civil Precedents (1886 ed.), p. 31, says: "It is better there should be no trial at all, than that the plaintiff should be allowed to set up one cause of action, and then, on any difficulty arising as to maintaining it on the evidence, to amend so as to raise another and different cause of action."
The question in this contention is this: Is the "cause of action" in the petition for partition the same as the "cause of action" stated in the amended pleadings--which are plainly counts in ejectment, or, as designated in the code, "for the recovery of real estate"?
The term, "cause of action," can not be defined. 1 Works' Prac., section 322.
The facts necessary to the relief sought constitute the "cause of action" in each case. The complaint for partition is formal under sections 1201 and 1203, Burns' Rev. 1894.
It describes the premises and alleges that plaintiffs and defendants are tenants in common; that the property can not be divided without injury, and prays for a sale of the property and division of the proceeds. The new ...
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