Hardy v. Woods

• Decision Date: 21 March 1914
• Parties: HARDY v. WOODS et al.
• Court: South Dakota Supreme Court

146 N.W. 568

33 S.D. 416

HARDY v. WOODS et al.

Supreme Court of South Dakota

March 21, 1914

Appeal from Circuit Court, Edmunds County; J. H. Bottum, Judge.

Action by Charles W. Hardy against George A. Woods and others. From a judgment for plaintiff and an order denying a motion for a new trial, defendants appeal. Affirmed.

See also, 28 S.D. 151, 132 N.W. 692.

Williamson & Williamson, of Aberdeen, for appellants.

C. M Stevens, of Aberdeen, for respondent.

POLLEY J.

This action was commenced by Charles W. Hardy, as administrator with the will annexed, of the estate of Jesse A. Hardy deceased. The said Jesse A. Hardy died testate in the county of Hillsboro, state of New Hampshire, in the year 1898. At the time of his death, he was seized in fee of the quarter section of land that is the subject of this action. Plaintiff was appointed executor of the last will and testament of said Jesse A. Hardy, in said Hillsboro county, N. H., and was also appointed administrator, with the will annexed, of the said estate in Clark county, S.D. Defendant claimed title to the premises in controversy through a certain tax deed, tax judgment sale certificate, and judgments of the circuit court purporting to quiet the title in defendant's grantors prior to the commencement of this action. These evidences of title were all disposed of by this court on a former appeal of this cause, and will receive no further notice. Hardy v. Woods et al., 28 S.D. 151, 132 N.W. 692.

On the trial, the defendant, for the purpose of defeating plaintiff's right to maintain this action, introduced in evidence certain records from the county court of Clark county, showing that the administration of the estate of the said Jesse A. Hardy had been wound up and that the said Charles W. Hardy had been finally discharged as administrator of said estate, in January, 1904. Upon the admission of this evidence, plaintiff's counsel announced that he was taken completely by surprise, that he had believed the matter of the estate of said Hardy was still pending in the county court of Clark county, and that plaintiff was still administrator and authorized to maintain this action. Counsel then asked to be given time to investigate the matter and requested the court to hold the case open to allow him time to make such investigation. This request was granted by the court, and, upon investigation, counsel found that the said administration had been finally wound up, decree of final distribution entered, and plaintiff discharged as such administrator. He further found that the plaintiff was the sole surviving legatee and devisee of the said Jesse A. Hardy, and was therefore seized in fee of the title to the land in controversy in his own right. Counsel thereupon applied to the court and was given leave to amend plaintiff's complaint so as to conform to the facts as they actually existed, and also to strike from the title of said cause the words "as administrator with the will annexed of the estate of Jesse A. Hardy, deceased." This was allowed, and, the amendment being made, plaintiff introduced in evidence the "decree of heirship" entered by the county court of Clark county in the said matter, which, among other things, "declared that Charles W. Hardy is sole heir, devisee and legatee of the said decedent and his last will and testament." The court thereupon found that plaintiff was the owner in fee and entitled to the possession of the disputed premises, and entered a decree accordingly. Motion for a new trial being denied, defendant appeals to this court.

It is first contended by appellant that the court erred, to his prejudice, in permitting this amendment and in receiving further evidence in support of the amended complaint; that he was given no opportunity to answer the same or to introduce further evidence or to be heard on the issues raised by the amended complaint. In short, that the court granted plaintiff a new trial and entered judgment for plaintiff as though by default, without giving defendant an opportunity to offer proof to controvert the allegations of the amended complaint. This contention finds no support whatever in the record. Plaintiff was originally given ten days in which to ascertain the real condition of the Hardy estate in Clark county. This time was extended by the court, but defendant was given notice of the time and place where the matter of filing the amended complaint and making further proof would be heard by the court, and he was present, by his counsel, and made his objections thereto, but did not ask leave to file an answer to the amended complaint nor offer further evidence; nor does he now suggest that he wishes to answer the said amended complaint or has further evidence to offer, nor show in what manner he was prejudiced by the rulings of the court.

But it is claimed that the change made in the complaint, under the guise of an amendment, amounted to a substitution of parties plaintiff and set up a new and different cause of action and changed the issues involved. This presents a question of more difficulty. Plaintiff brought the suit in his capacity as administrator, alleging the premises in dispute to belong to the estate of Jesse A. Hardy. By the amendment, he became the plaintiff in his individual capacity and claimed that he individually, was the owner in fee of said premises. This, appellant strenuously contends, the court was without authority to permit, and, in support of this contention, cites the following authorities: Davis v. Mayor, 14 N.Y. 506, 67 Am. Dec. 186; Wood v. Metropolitan Life Ins. Co., 96 Mich. 437, 56 N.W. 8; Dubbers v. Goux, 51 Cal. 154; Wilson v. Kiesel, 9 Utah, 397, 35 P. 491; More v. Burger, 15 N.D. 345, 107 N.W. 200. Some of these cases appear to support appellants' contention, yet none of them are parallel cases, and the overwhelming weight of authority, and, as we believe, the better reasoning, supports the opposite view. The act most loudly complained of by appellant was the permitting of plaintiff to change the character in which he was endeavoring to maintain the action; yet the rule seems to be well established that this may properly be done where it is warranted by the facts. "Where a party sues in his own right, he may, if the facts warrant it, amend his complaint so as to make the suit stand in his representative capacity; or conversely, if he sues in his representative capacity, he may be allowed to amend by declaring in his individual capacity." 1 Enc. Pl. & Pr. 537, 538; 18 Cyc. 981; and 31 Cyc. 490, and cases cited. What was said in an early Iowa case is especially applicable to the facts in this case: "A party asking an amendment at so late a stage as in the present case would naturally expect to pay the whole expense caused by the issue; and what is the substantial difference between this and his taking a nonsuit and commencing again, except that by taking an amendment,...