Hodges v. Alexander

• Decision Date: 03 July 1923
• Docket Number: Case Number: 11327
• Citation: Hodges v. Alexander, 94 Okla. 122, 220 P. 927, 1923 OK 444 (Okla. 1923)
• Parties: HODGES v. ALEXANDER.
• Court: Oklahoma Supreme Court

1923 OK 444

220 P. 927

94 Okla. 122

HODGES v. ALEXANDER.

Case Number: 11327

Supreme Court of Oklahoma

Decided: July 3, 1923

Syllabus

¶0 1.Pleading -- Departure -- Amendment--Change of Claim.

Plaintiff sued the defendant, ex delicto, on several causes of action for damages, growing out of alleged wrongful suits brought by defendant against plaintiff.Thereafter, plaintiff filed an amended petition, ex contractu, for the same alleged wrongs, but declared, upon the statutory bond in each cause of action given by defendant to indemnify plaintiff.Held, that said amended petition did not change substantially the claims of plaintiff and was not a departure.

2.Same -- Permissible Pleading -- Error to Strike.

Where an amended petition is a permissible pleading, and the defendant is not prejudiced by the filing thereof, it is not within the legal discretion of the court to sustain a motion to strike same, and the sustaining of such motion is error.

Commissioners' Opinion, Division No. 2.

Error from District Court, Love County; Thomas W. Champion, Judge.

Action by M. L. Hodges against M. L. Alexander for damages for wrongful suits filed.Judgment for defendant, and plaintiff appeals.Reversed and remanded, with directions.

Graham & Logsdon and Eddleman & Sneed, for plaintiff in error.

Cruce & Potter and Moore & West, for defendant in error.

ESTES, C.

¶1Plaintiff in error, as plaintiff, sued the defendant in error, as defendant, in the district court, ex delicto, alleging that the defendant had brought several suits, describing them, in attachment, injunction, and otherwise against him; that same were determined adversely to the defendant; that same were wrongful and malicious, and asked for $ 3,000 actual and $ 1,000 exemplary damages.Defendant filed no motion to separately state and number the causes of action, but demurred, which demurrer was overruled, and thereupon defendant filed answer.Thereafter plaintiff filed an amended petition describing each of the several alleged wrongful and malicious suits and stated each of the same as a separate cause of action.In each cause of action, plaintiff described the bond which defendant gave and declared upon the same, thereby setting up several causes of action ex contractu.Meantime, defendant, M. L. Alexander, died, and the cause was duly revived in the name of and ordered to proceed against Roy Alexander as administrator.Thereafter, by leave of court, defendant withdrew his answer theretofore filed, and obtained leave of court to file, and did file, a motion to strike said amended petition for the reason that the same attempted to set up a separate and distinct cause of action from that set forth in the original petition and constituted a departure therefrom.The court sustained said motion to strike.Plaintiff excepted, and declined to amend or plead further and the cause was by the court dismissed and the case duly lodged by the plaintiff in this court, assigning that the lower court erred: (1) In permitting the defendant to withdraw his answer and file said motion to strike the amended petition; (2) In sustaining said motion and striking said petition; (3) In rendering judgment dismissing said cause.

1.We prefer to discuss, first and together, the last two assignments.The question is squarely presented.Did the court err in striking the amended petition on the ground that it was a departure, in that it changed the cause of action from one ex delicto to one ex contractu?The answer to this question involves the construction of section 318,Comp. Stat. 1921, which provides, among other things, that the court may, before or after judgment, in furtherance of justice, amend any pleading when such amendment does not change substantially the claim or defense.Although the authorities are divided, this court has adopted the rule that such change may be made by amendment.In Z. J. Fort Produce Co. v. Southwestern Grain & Produce Co., 26 Okla. 13, 108 P. 386.Mr. Justice Hayes discussed the diversity of authority on this question, the tendency toward liberal construction, and called attention to the construction of said statute in the case of Culp v. Steere et al., 47 Kan. 746, 28 P. 987, just prior to the adoption of said statute by our territorial Legislature, and

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