Cable v. Olson, 5883

• Decision Date: 26 October 1932
• Docket Number: 5883
• Citation: 15 P.2d 737,52 Idaho 389
• Court: Idaho Supreme Court
• Parties: C. V. CABLE, Appellant, v. F. E. OLSON, Doing Business Under the Name and Style of PEOPLE'S MARKET, Respondent

15 P.2d 737

52 Idaho 389

C. V. CABLE, Appellant, v. F. E. OLSON, Doing Business Under the Name and Style of PEOPLE'S MARKET, Respondent

No. 5883

Supreme Court of Idaho

October 26, 1932

PLEADING-AMENDMENTS-APPEAL AND ERROR-ATTACHMENT-MOOT QUESTION.

1. Amended complaint supersedes, and relates back to date of filing of, original complaint.

2. Original complaint becomes functus officio on filing of amended complaint, and court's rulings on prior pleading cannot be reviewed by appellate court.

3. Writ of attachment cannot issue on cause of action not pleaded.

4. Writ of attachment, based on affidavit setting out several causes of action, one of which was abandoned in amended complaint held void, being entirety.

5. Appeal from order dissolving attachment, based on affidavit setting out several causes of action, one of which was abandoned in amended complaint, must be dismissed as involving moot question, in absence of appeal from order denying right to amend affidavit.

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. Jay L. Downing, Trial Judge.

Motion to dismiss appeal. Sustained.

Appeal dismissed, with costs to respondent.

C. A Bandel, for Appellant, files no brief on motion to dismiss.

Ariel L. Crowley and C. E. Crowley, for Respondent.

Where an amended complaint is filed, it takes the place of the original, and all subsequent proceedings in the case are based upon the amended pleading. (People v. Hunt, 1 Idaho 433; Armstrong v. Henderson, 16 Idaho 566, 102 P. 361.)

Original pleadings become functus officio when amended pleadings are filed. (Colgrove v. Hayden Lake Irr. Dist., 40 Idaho 489, 235 P. 434.)

By amendment of the complaint so as to substitute a different cause of action from the one originally sued upon, an attachment may be ipso facto dissolved. (2 R. C. L., p. 868 par. 81; Vollmer v. Spencer, 5 Idaho 557, 51 P 609.)

LEE, C. J. Budge, Givens, Varian and Leeper, JJ., concur.

OPINION

LEE, C. J.

Plaintiff and appellant, C. V. Cable, obtained a writ of attachment against property of defendant and respondent, F. E. Olson. Both the complaint and affidavit of attachment set forth four causes of action. Respondent demurred to the complaint, and moved to dissolve and discharge the attachment upon several grounds. The trial court sustained the demurrer and discharged the attachment on March 2, 1932. On March 11, 1932, appellant filed his amended complaint, having abandoned his second cause of action, setting up only three of the original four causes of action, and the following day moved the court for permission to amend his affidavit, which motion was by the court denied. From the order dissolving the attachment, plaintiff appealed, seeking to preserve the attachment by filing an undertaking under the provisions of C. S., sec. 7159. Respondent has moved to dismiss the appeal on the ground that the same is moot.

The attack upon the affidavit of attachment involved many allegations of the original complaint. The amended complaint superseded the original and related...