Clark v. Oregon Short Line R. Co.

• Decision Date: 25 January 1909
• Citation: 99 P. 298,38 Mont. 177
• Parties: CLARK v. OREGON SHORT LINE R. CO.
• Court: Montana Supreme Court

99 P. 298

38 Mont. 177

CLARK v. OREGON SHORT LINE R. CO.

Supreme Court of Montana

January 25, 1909

Appeal from District Court, Silver Bow County; J. M. Clements Judge.

Action by William D. Clark against the Oregon Short Line Railroad Company for interfering with a ditch and water right. From a judgment for defendant, plaintiff appeals. Reversed.

T. F Nolan, for appellant.

J. S Wines, for respondent.

SMITH J.

The original complaint in this case was filed in the district court of Silver Bow county on July 30, 1901. A judgment, thereafter rendered in favor of the plaintiff on the pleadings, was reversed by this court. See 29 Mont. 317, 74 P. 734. General and special demurrers were filed to the original complaint, but the record does not disclose that the court ever passed upon the same, and afterwards the defendant filed an answer in which it denied each and every allegation of the complaint. On February 2, 1907, the plaintiff filed his amended complaint, and the court afterwards sustained a general demurrer thereto. On March 6, 1907, a second amended complaint was filed, and to that pleading the defendant, among other allegations, answered that the alleged cause of action was barred by virtue of the provisions of certain statutes of limitations. Upon the trial the court below sustained the defendant's contention, refused to allow plaintiff to introduce any evidence under his second amended complaint, and entered judgment for the defendant, from which judgment an appeal is taken.

It is conceded that if the defendant's premises are correct, then its conclusion that the cause of action is barred is also correct. It contends through its counsel that, as the original complaint did not state facts sufficient to constitute a cause of action, and the second amended complaint was not filed until nearly six years after the cause of action is alleged to have accrued, the statute has run and the cause is barred. The action was brought to recover damages for a wrongful interference with a ditch and water right. Plaintiff originally alleged that the defendant "is" a corporation, and plaintiff "is" the owner of the ditch and water right. He then proceeded to aver that the water right and ditch had been used for the purpose of irrigating "plaintiff's ranch, called the McCauley ranch, for more than 10 years last past," and that "the defendant, in the years 1900 and 1901, *** injured the plaintiff's said ditch, *** all of which has resulted in damage to the plaintiff. ***" The defendant first filed a so-called plea in abatement, setting forth that its true name is Oregon Short Line Railroad Company, instead of the Oregon Short Line Railway Company, and afterwards entered a general appearance and filed an answer, and has been in court ever since. The second amended complaint alleged that at all times mentioned therein the defendant was a corporation, and the plaintiff was the owner of the ditch and water right. Defendant's counsel argues in his brief that the original complaint was fatally defective for want of allegations that the defendant was a corporation, and the plaintiff was the owner of the ditch and water right, at the time the acts of the defendant were alleged to have been committed. Plaintiff's counsel does not controvert this proposition, and perhaps unfortunately so, as all of the members of this court believe that the question is a close one, and the writer of this is of opinion that the complaint was sufficient. See Tennison v. Tennison, 114 Ind. 424, 16 N.E. 818; Kimball & Fink v. Borden, 95 Va. 203, 28 S.E. 207; Taylor v. Perry, 48 Ala. 240; Sargent v. Railroad Co., 32 Ohio St. 449; Gage v. Wayland, 67 Wis. 566, 31 N.W. 108; Peck v. Peck, 35 Conn. 390; Pittsburgh, C., C. & St. L. Ry. Co. v. Harper, 11 Ind.App. 481, 37 N.E. 41; Flenniken v. Buchanan, 21 S.C. 432; Prindle v. Caruthers, 15 N.Y. 425; Evans' Adm'r v. Exchange Bank, 79 Mo. 182; Necker v. Harvey, 49 Mich. 517, 14 N.W. 503. However, appellant says in his brief that the only question to be discussed is, whether a suit is commenced in a court of record by filing a complaint, regardless of whether sufficient facts are stated to constitute a cause of action or not, and we shall confine ourselves to that question, which is a new one in this state.

There are many cases in the books which hold that, where the amendments offered disclose a clear departure from law to law, or from fact to fact, where an entirely new claim or demand is for the first time asserted, or where an additional cause of action is brought forward by way of proposed amendment, the operation of the statute of limitations is not suspended by filing the original complaint. There appears to be little, if any, diversity of opinion among courts and text-writers as to the law in such cases. 25 Cyc. 1308; Union P. Ry. Co. v. Wyler, 158 U.S. 285, 15 S.Ct. 877, 39 L.Ed. 983. Then there is a class of cases holding that where the original complaint states a cause of action, but does it imperfectly, and afterwards an amended complaint is filed correcting the defect, the plea of the statute of limitations will relate to the time of filing the original complaint. 25 Cyc. 1307. Again there are cases holding that where the original complaint states no cause of action whatever, it will not arrest the running of the statute, and an amendment made after the bar of the statute is complete will be regarded as the beginning of the action, in reckoning the statutory period of limitation (25 Cyc. 1309), and these are the cases relied upon by the respondent.

As a copy of the original complaint is before us, we have no hesitancy in saying that the filing of the same constituted at least a bona fide attempt to commence an action. It would be interesting to inquire, if we might do so, whether it actually fails to state a cause of action, or is simply uncertain in its allegations. Another interesting question which might have been presented is whether there may not be a distinction between a complaint which merely omits some formal allegation or is imperfect of statement and one from which it clearly appears that the plaintiff has no cause of action, or has filed what the court would say is no complaint at all, even though a general demurrer to either would be well taken. The courts of Illinois and Kansas have laid down, and consistently adhered to, the rule that an amendment to a declaration or complaint, 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 or complaint was filed within the statutory period. Eylenfeldt v. Illinois Steel Co., 165 Ill. 185, 46 N.E. 266; Illinois Central R. Co. v. Campbell, 170 Ill. 163, 49 N.E. 314; Mackey v. Northern Milling Co., 210 Ill. 115, 71 N.E. 448; Missouri, K. & T. Ry. Co. v. Bagley, 65 Kan. 188, 69 P. 189, 3 L. R. A. (N. S.) 259. On the other hand, we have the dissenting opinion, in the case last cited, of Chief Justice Doster, in which it is said: "I dissent from the judgment in this case, and from so much of the opinion as applies the statute of limitations to the case of defendant in error, and am authorized to say for Justice Ellis that he also dissents. The majority opinion is entirely too technical. The original petition was defective because incomplete in its formal allegations. It simply omitted the statement of the consideration for the promise sued on. The amendment merely supplied the allegation of that element of the contract. Now in such cases we understand the rule to be that petitions are amendable even after the running of the statute of limitations; that is, the incomplete allegations may be helped out by amendment. However, one may not introduce a new cause of action into a case by way of amendment of his petition after the period of limitation has run against it. He may not, under the guise of amendment, change his cause of action from one sued on during its life to one against which the bar of the statute has run, nor may he by way of amendment tack a barred cause of action onto one against which the statute has not run. The decisions cited in the majority opinion are instances of changes from one cause of action to another, and do not constitute precedents for the ruling made in this case. We would pursue the subject further, and collate the authorities on this point, but for the fact that the decision made can be shown to be erroneous upon plain statutory grounds."

In the case of Prokop v. Gourlay, 65 Neb. 504, 91 N.W. 290 the Supreme Court of Nebraska held that, where the owner of personal property delivered it to another for sale on commission, and no time was fixed within which such sale was to be made, the law would imply a reasonable time, and a petition which failed to allege that a reasonable time had expired for making such sale was fatally defective. The original petition was afterwards amended in the court below by adding the allegation that a reasonable time had elapsed, and the plaintiff thereafter appealed from a judgment in favor of the defendant. The Supreme Court said: "A motion was made by the defendants to strike the amended petition, for the reason that it was not an amendment, but set up a new cause of action, and did not accrue within four years, and that, so far as amended, it was a departure from the original cause of action in the justice court. This motion was overruled. A demurrer was then filed to the petition, and sustained upon the ground that the amended petition set up a new cause of action, and was therefore barred by the statute of limitations, and the cause was thereupon dismissed. *** Without considering whether the question proposed can be properly raised by demurrer, it will be seen that there is only one...