Columbia Savings and Loan Association v. Clause

• Decision Date: 12 December 1904
• Citation: 13 Wyo. 166,78 P. 708
• Parties: COLUMBIA SAVINGS AND LOAN ASSOCIATION v. CLAUSE, AS ADMINISTRATOR
• Court: Wyoming Supreme Court

78 P. 708

13 Wyo. 166

COLUMBIA SAVINGS AND LOAN ASSOCIATION v. CLAUSE, AS ADMINISTRATOR

Supreme Court of Wyoming

December 12, 1904

ERROR to the District Court, Carbon County, HON. DAVID H. CRAIG Judge.

The action was brought by the Columbia Savings and Loan Association against James H. Clause, administrator of the estate of Robert O'Melia, deceased, upon a written contract of the decedent for the payment of money. Upon sustaining a demurrer to the second amended petition, and striking a third amended petition from the files as not differing in substance or effect from the preceding petition the action was ordered dismissed, and a judgment entered for defendant. The plaintiff brought error. The material facts are stated in the opinion.

Reversed.

Chatterton & Coolidge and J. Norman, for plaintiff in error.

The various amendments to the petition were proper and did not amount to the statement of a new cause of action; and the bar of the five-year statute of limitation does not apply to this case. The amendments to the petition eliminated the prayer for foreclosure of the trust deed given to secure the debt and in no way enlarged or in any other way changed the character of the suit. (R. S. 1899, Sec. 3495.) The allowance of a claim against the estate of a decedent is in legal effect a judgment against the estate. As the last payment was for the month of July, 1896, and paid up to the last Saturday of that month, it is clear that five years had not elapsed on the date of the filing of the petition, namely: July 2, 1901. But the statute of limitations would not apply to the note in controversy, as no definite time for maturity is therein stated. The payments were to continue until the stock in the plaintiff association had matured. The provision in the deed of trust for declaring the debt due at the option of the legal holder and for the sale of the premises under the trust deed in the manner and to the same effect as if the indebtedness had regularly matured, clearly takes the case out of the statute of limitations, since it does not provide that the debt shall become due unconditionally, but that it may be declared due at the option of the holder of the note. (Lowenstein v. Phelan, 17 Neb. 429; Leavitt v Reynolds, 79 Iowa 348; Watts v. Creighton, 85 Iowa 154; Bank v. Neb., &c., Co., 17 F. 763; Mfg. Co. v. Howard, 28 F. 741; Belloc v. Davis, 38 Cal. 242; Fletcher v. Daugherty, 13 Neb. 224.)

Pleadings should be liberally construed. (R. S. 1899, Sec. 3570.) The relief prayed for is no part of the cause of action. (Hahl v. Sugo, 169 N.Y. 109.) The character of the cause of action is determined by the allegations without reference to the prayer. Hence, in determining the character of an amendment with reference to the original complaint, the allegations of each, eliminating the prayers, should be considered. (R. S. 1899, Secs. 3533, 3535; Bliss Code Pl., Sec. 161; 1 Ency. Pl. & Pr., 146.) Amendments will be freely allowed at any stage of the proceedings, and to be refused must be inconsistent with and repugnant to the original complaint. (1 Ency. Pl. & Pr., 470, 472, 477.) The cause of action was not changed by the amendment. (Ins. Co. v. Billings, 61 Vt. 310; Admr. v. Graves, 62 Vt. 280; Maxwell v. Harrison, 8 Ga., 61; Davis v. R. R. Co., 110 N.Y. 646; Stevenson v. Mudgett, 10 N. H., 338.)

The mortgage being in the form of a trust deed, the trustee, as well as the successor in the trust, are necessarily parties and must be before the court as plaintiffs or defendants before an effectual decree can be obtained. (9 Ency. Pl. & Pr., 313; Wiltsie on Mortg. Forcl., Sec. 146.)

An action is deemed commenced at the date of the summons. (R. S. 1899, Sec. 3461.) Unless the cause was heard and determined in the court below upon the merits, no defect in the service of summons or other error in the proceedings can cause the bar of the statute to operate against the claim of plaintiff in error, since the statute clearly gives the plaintiff in error one year after the determination of the case in this court to begin a new action. Section 3465, Revised Statutes, 1899, applies to this case, which authorizes a new action to be commenced within one year where it has been commenced in time and a judgment for plaintiff is reversed or the plaintiff fails otherwise than upon the merits and the statute has run at the time of such reversal or failure. (Meise v. McCay, 17 Ohio St. 225; Ry. Co. v. Bemis, 64 Ohio St. ___; Ry. Co. v. Shelton, 57 Ark. 459; Titus v. Poole (N. Y.), 40 N.E. 228; Conolly v. Hyams, 68 id., 662.)

McMicken & Blydenburgh, for defendant in error.

But two questions are raised by the petition in error: (1) the sustaining of the demurrer January 17, 1903, and (2) the striking of the plaintiff's so-called amended petition from the files and entering judgment on the demurrer, June 25, 1903. Matters which are not objected to or excepted to at the time and then assigned as error will not be considered in the appellate court. (Johnson v. Golden, 6 Wyo. 540; Imp. Co. v. Bradley, id., 178; Lovekin v. Sterling, 1 Ida., 120; Rude v. Dunbar, 9 Neb., 95; Rand v. King, 134 Pa. St. 641; Elliott's App. Proc., Secs. 306, 308, 402; R. S. 1899, Secs. 3740, 4251.) All argument, therefore, on behalf of plaintiff in error relative to the quashing of the summons and service under the special appearance are to be considered as surplusage and needing no answer, no exception having been taken and no reference made in the petition in error to such ruling of the court. The action of the court in quashing the summons must be accepted as correct, and hence it appears that no legal summons was issued or served prior to November 8, 1901. If the demurrer to the second petition was properly sustained, then the motion to strike the third amended petition was proper, since the latter in no way differed from the preceding petition in respect to the objections presented by the demurrer, namely: (1) that the general statute of limitations barred recovery upon the note, (2) that suit was not commenced within three months after the rejection of the claim by the administrator, as required by Section 4753, Revised Statutes. As the demurrer was sustained without specifying the particular ground thereof, if either objection presented by the demurrer is good, then the court did not err. If suit was not legally begun within the required three months, then the demurrer was properly sustained and the third amended petition was properly stricken from the files.

The first petition was one for foreclosure of a mortgage, and it might be presumed to have been brought under the last clause of Section 4755, Revised Statutes, though recourse against the property of the estate was not therein expressly waived; and as to such a suit it might perhaps even be brought now upon waiver of recourse, as required by statute. A petition is not sufficient without a prayer. (R. S. 1899, Sec. 3533.) No service was had upon the petition until November 8, 1901, long after the expiration of the statutory period of three months, the first summons having been held void, and an action being deemed commenced in respect to the statute of limitations as to the defendant at the date of the summons served on him. (R. S., Sec. 3461.) And plaintiff is not aided by Section 3462, since the attempt to commence the action was not followed by service within sixty days.

After appearance entered by defendant and demurrer filed, plaintiff had no right to file an amended petition in the case without leave of court. Section 3465, Revised Statutes, does not apply to this case, for the reason that the filing of the petition was not a commencement of the action, and hence the action was not begun within time.

Since not only the service, but the first summons itself, was quashed by the court, to which no exception was taken, the act of plaintiff in filing a new petition and issuing a new summons thereon was an abandonment of the original action, for otherwise there was no authority in the statute for issuing an entirely new summons or so-called alias summons. The filing of the so-called amended petition, the court having denied leave for that purpose, also constituted an abandonment of the former action, and the issuance of summons thereon while the demurrer was pending to the former petition, can only be considered as showing the commencement of a new action. (Irwin v. Paulett, 1 Kan. 418; R. Co. v. Wilson, 10 id., 105; Sands v. Caulkins, 30 How. Pr., 13; White v. City, 13 N. Y. Supr., 685; 5 Abb. Pr., 322; 14 How. Pr., 495; Null v. Canal Co., 4 Ind. 431; Ivins v. Schooley, 18 N.Y. 269; Rielly v. Rielly, 64 Hun, 496; Maghee v. City, 78 Ga. 790; Nolton v. City, 130 U.S. 327; Ternekas v. Case, 75 Iowa 152; Peck v. Ins. Co., 102 Mich. 62; Woodville v. Harrison, 3 Wis. 360.)

The original summons itself was void, not voidable, as well as the service. (Bowen v. Jones, 13 Ired. L. (N. C.) ___; Anthony v. Beebe, 17 Ark. 447; Rudd v. Thompson, 22 Ark. 363; Vaugn v. Burn, 9 Ark., 20; Bertonlin v. Bourgoin, 19 La. Ann., 360; Bigbee v. Ashly, 7 Ill. 151; Hickey v. Fonistal, 49 Ill. 255; Arnold v. Winn, 26 Miss. 338; Nabors v. Thorson, 1 Ala. 590; Cullanry v. Hanold, 61 Ga. 111; Smith v. Anrick, 6 Colo., 388; Sidwell v. Schumaker, 99 Ill. 426; Hocklander v. Hocklander, 73 Ill. 618; Tyman v. Milton, 44 Cal. 630; Ward v. Ward, 59 Cal. 139; Flint v. Noyes, 27 Kan. 351; Coke Litt., 168a; Graves v. Smart, 75 Me. 295; Falvey v. Jones, 80 Ga. 136; Gowdy v. Sanders, 88 Ky. 346; Jenasen v. Walthers, 26 Fla. 448; Williams v. Hutchinson, 26 Fla. 513; Andrews v. Fitzpatrick, 16 S.E. 278; Baird v. Smith, 9 Iowa 50; Carlisle v. Weston, 21 Pick., ___; Gintier v. Rosecrance, 27 Wis. 488; R. Co. v. Sayre, 13 N.W. 404; Gallegos v. Pino, 1 H. M., 410;...