Drake v. Found Treasure Min. Co.

• Decision Date: 07 November 1892
• Citation: 53 F. 474
• Parties: DRAKE v. FOUND TREASURE MIN. CO.
• Court: U.S. District Court — District of Nevada

53 F. 474

DRAKE v. FOUND TREASURE MIN. CO.

United States Circuit Court, D. Nevada.

November 7, 1892

E. S Farrington, for plaintiff.

Baker Wines & Dorsey, for defendant.

HAWLEY District Judge.

The plaintiff commenced this action in the state district court against the Found Treasure Mining Company on the 22d day of July, 1891, to recover the sum of $2,500, alleged to be due and owing from said defendant to plaintiff upon a promissory note for that amount, executed by defendant on or about July 22, 1887, payable on demand. The suit was subsequently removed to this court, upon the ground of the diverse citizenship of the parties, the defendant being a foreign corporation. By stipulation of counsel, and amended complaint was filed, adding the names of John Doe and Richard Roe as parties defendant, and alleging, in substance, that on or about the 28th day of July, 1887, at San Francisco, Cal., the Found Treasure Mining Company made and delivered to Frank N Drake, plaintiff, R. M. Clarke, W. H. Ennor, H. M. Yerington and D. L. Bliss, its promissory note, whereby it promised to pay said parties in 90 days from July 20, 1887, at Carson City, Nev., the sum of $10,000, with 6 per cent. interest that $2,500 of this amount was loaned to the corporation by plaintiff, and the balance of the amount was loaned by the other named persons; that on January 2, 1888, Clarke, Ennor, Yerington, and Bliss indorsed said note, and delivered their respective interests therein to the defendants Doe and Roe; that no part of the note has been paid; that the identity of defendants Doe and Roe has not been discovered, nor their consent obtained to join them as plaintiffs, and they are therefore made parties defendant, but no personal claim is made against them. Plaintiff prays judgment for the sum of $10,000, with interest and costs. The defendant the Found Treasure Mining Company moves this court to strike out the amended complaint upon the ground that 'it sets out another and different cause of action from that made by said original complaint,' and also interposes a demurrer on the ground that 'all recovery thereon is barred by the statute of limitations. ' If the case rested upon the pleadings alone, the motion to strike out the amended complaint should be granted. No amendment should be allowed which, in effect, amounts to the institution of a new suit upon an entirely different contract, either as to parties or to the subject-matter of the action. The general rule is well settled that a plaintiff is not at liberty to abandon the cause of action as made in his original complaint by inserting a new and different case by way of amendment, and it does not affirmatively appear from the allegations of the amended complaint in this case that plaintiff seeks a recovery upon the promissory note declared upon in the original complaint. But the plaintiff was, by leave of the court, permitted to file an affidavit showing the true state of the facts. By this affidavit it does affirmatively appear that the cause of action set forth in the amended complaint is intended to be, and is, identical with the cause of action set out, or attempted to be set out, in the original complaint. The affidavit shows that the plaintiff, at the time of the commencement of this action,...