Green v. Davis

• Decision Date: 03 November 1919
• Docket Number: 9240.
• Parties: GREEN et al. v. DAVIS et al.
• Court: Colorado Supreme Court

185 P. 369

67 Colo. 52

GREEN et al. v. DAVIS et al.

No. 9240.

Supreme Court of Colorado

November 3, 1919

Error to District Court, Clear Creek County; H. S. Class, Judge.

Action by Thomas Green and H. J. Harris against J. S. Davis, H. E Mantor, and Inez D. Jaynes. Judgment for defendants, and plaintiffs bring error.

Reversed and remanded.

J. W B. Smith, of Idaho Springs, and E. M. Sabin, of Denver, for plaintiffs in error.

F. L Collom, of Idaho Springs, for defendants in error.

Plaintiffs in error brought this action in support of their adverse claim filed against the application of defendants in error for patents to certain mining property in the Montana mining district in Clear Creek county.

The summons is in ejectment and recites that----

'The said action is brought to recover judgment against said defendants and for the recovery of possession of the following described portion or parcel of the Junk lode mining claim (describing same), for $100 damages and $50, moneys expended in support of adverse claim.'

The complaint recites: 'That this suit was brought in support of said adverse claim.' Paragraph 5 thereof reads as follows:

'That on, to wit, the 13th day of May, 1915, and ever since said date, these plaintiffs were and still are the owners, and have been and now are in actual possession and occupation of the said Junk lode mining claim, in said Montana Mining District, as aforesaid.'

The prayer of the complaint reads, in part, as follows:

'Wherefore, plaintiffs pray for judgment against the defendants: That they are entitled to the possession of the said area in conflict between the said lode claim by these plaintiffs and the said alleged lode claims of the said defendants; that these plaintiffs are the owners of the said area in conflict; and that the defendants have no right, title, or interest therein.'

Summons was issued and complaint filed on the same day. Motion to strike the complaint because of a variance between the complaint and summons (it being alleged in the motion that the cause of action stated in the complaint was one to quiet title and the cause of action stated in the summons was one in ejectment) was filed and overruled and leave granted plaintiffs to file an amended complaint. Thereafter an amended complaint was filed (which it is admitted is a complaint in ejectment and is in conformity with the summons), and defendants moved to strike this amended complaint from the files because it was an attempt to convert the action from a suit in equity to an action at law. This motion was sustained and judgment thereupon entered in favor of the defendants, and plaintiffs bring error.

BURKE J.

The defendants maintain that to permit the amended complaint to stand would change the cause of action from a legal to an equitable one. This is the sole question necessary for our determination.

If the cause of action is in fact so changed by the amended complaint, the judgment must be affirmed under the settled rule in this jurisdiction.

'A plaintiff may not, under the guise of an amendment to a complaint, change the cause of action as stated in the original complaint from a legal to an equitable one.' Gibons v. D. B. & C. Co., 17 Colo.App. 167-171, 67 P. 913, 914; Thompson v. White, 25 Colo. 226-240, 54 P. 718.

It is important in the beginning to bear in mind the reason for this rule, because the rule itself belongs to a class concerning which it may properly be said that when the reason fails the rule is inapplicable. That reason has been briefly stated by Mr. Chief Justice Elbert:

'The defendant finds himself in court to answer a charge concerning which he has never been summoned.' Givens v. Wheeler, 6 Colo. 149, 150.

In the case at bar it will be observed that the charge stated in the amended complaint, and which the defendants are required to answer, is the charge concerning which they were summoned.

Our Code (section 32) provides that----

'Civil actions shall be commenced by the filing of a complaint * * * or by the service of a summons.'

But actions may properly be held to be commenced for one purpose, though not for another. 1 Encyc. P. & P. 119.

The reason for the rule prohibiting a change of a cause of action by amendment of the complaint, i. e., that a defendant may not be summoned to answer one cause of action and...