Carmichael v. Argard

Decision Date04 June 1881
Citation9 N.W. 470,52 Wis. 607
CourtWisconsin Supreme Court


Appeal from circuit court, Eau Claire county.

J. F. Ellis, for appellant.

S. N. McCaslin and L. M. Vilas, for respondent.


This action was commenced by the service of summons. The defendant appeared and demanded a copy of the complaint. The complaint served was a complaint in ejectment to recover the possession of certain lots described therein, and was in the form prescribed by section 3077, Rev. St. 1878. The defendant answered, and, among other things, denied that he ever was in the possession of said lot, or any part therof, and alleged that at the time of the commencement of said action, and for a long time previous thereto, the plaintiff had been and was in the actual possession of said lot, and of the whole thereof, by his tenant, one August Gutch. Thereupon, and within 20 days after the service of such answer, the plaintiff served upon the defendant's attorney a complaint, called by him an amended complaint, but which was, in fact, a complaint under section 3186, Rev. St. 1878, in which he alleges that he is in the actual possession of said lot, and that the defendant claims title to said lot by virtue of a tax deed, and then proceeds to set out facts showing that such deed is void, and prays judgment that the plaintiff be given the quiet possession of said lot as against the defendant and all persons claiming under him, etc.

This answer was returned by the defendant because it was not an amendment of the first complaint, and afterwards such complaint was, on motion of the defendants, stricken from the files of the court by an order made and entered on the sixth day of January, 1880. After said defendants had noticed said action for trial at the March term, 1880, and on the thirteenth of March, the plaintiff served a notice of motion, with copies of affidavits upon which the same was founded, for leave to file an amended complaint in said action, the same in substance as the amended complaint previously served, and which had been stricken from the files on the motion of the defendant. This motion was dismissed. The cause was tried by the court without a jury, and upon the trial the plaintiff was nonsuited, and judgment rendered against him for costs. The plaintiff appeals from the judgment, and assigns for error the making of the order striking his amended complaint from the files, and the order refusing to permit him to file his amended complaint upon his motion.

The appellant insists that he had a right under section 2685 to make and serve the complaint set out in the proceedings as an amended complaint. This section provides that “any pleading may be once amended by the party of course, without costs and without prejudice to the proceedings already had, at any time before the period for answering expires, or it can be so amended at any time within 20 days after the service of the answer or demurrer to such pleading.” The learned counsel for the respondent insists that the complaint served as an amended complaint was not such in fact, but a complaint setting out an entirely different cause of action, both in its nature and substance. The first complaint set out a purely legal cause of action in ejectment to recover the possession of real estate, and the cause of action set out in the amended complaint was an equitable one brought by the party in possession of the realty for the purpose of quieting his title thereto. An action so entirely different in its nature and objects from the action stated in the original complaint cannot be held to be an amendment of such complaint. The actions are so radically different that under the old system, when courts of equity and courts of law were presided over by different judges, the court of law would have had no jurisdiction to try the action set out in the amended complaint, and the court of equity would have had none to try the action set out in the original.

This court has, we think, settled the question against the appellant. It has frequently held that...

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22 cases
  • Schurmeier v. Connecticut Mut. Life Ins. Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 26, 1909
    ... ... (C.C.) 73 F. 655, 660, ... 661; Stevens v. Brooks, 23 Wis. 196, 199; ... Kavanagh v. O'Neill, 53 Wis. 101, 10 N.W. 369, ... 370; Carmichael v. Argard, 52 Wis. 607, 9 N.W. 470, ... 471; Hayward v. Hapgood, 4 Gray (Mass.) 437; ... Gray v. Brown, 15 How. Prac. (N.Y.) 555; Sheldon ... ...
  • Paschong v. Hollenbeck
    • United States
    • Wisconsin Supreme Court
    • April 7, 1961
    ...of that discretion. Most of the cases relied upon by the respondent go to the question of discretion, not of power. In Carmichael v. Argard, 1881, 52 Wis. 607, 9 N.W. 470, we held the trial court did not abuse its discretion in refusing to permit the plaintiff to cure a mistake of law on th......
  • First National Bank v. Sorenson
    • United States
    • Wyoming Supreme Court
    • August 14, 1923
    ... ... Pl ... 127). Tort cannot be changed to contract; (Cox v. R. R ... Co. 87 Ga. 747; Carmichael v. Argard, 52 Wis ... 607.) Or contract to Tort. Link v. Jarvis, 33 P ... 206, subsequent causes of action cannot be brought in ... (Randall v ... ...
  • Charmley v. Charmley
    • United States
    • Wisconsin Supreme Court
    • June 23, 1905
    ...a cause of action by amendment,--substituting one in equity for one at law, or one on contract for one sounding in tort. Carmichael v. Argard, 52 Wis. 608, 9 N. W. 470;Gilman v. Gross, 97 Wis. 224-229, 72 N. W. 885;Post v. Campbell, 110 Wis. 378, 85 N. W. 1032;Gates v. Paul, 117 Wis. 170, 9......
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