Hoegh v. Miller

Decision Date31 December 1920
Docket Number33238
Citation180 N.W. 653,190 Iowa 557
PartiesANNIE K. HOEGH, Appellant, v. CHRISTINE MILLER, Appellee
CourtIowa Supreme Court

Appeal from Shelby District Court.--E. B. WOODRUFF, Judge.

A DEMURRER to an amended and substituted petition was sustained, on the ground that it stated a new cause of action, and was, therefore, barred by limitations. Plaintiff elected to stand upon her petition and said ruling, and now appeals from the ruling.

Reversed.

Edward S. White and G. W. Cullison, for appellant.

Byers Byers & Miller, for appellee.

SALINGER J. WEAVER, C. J., EVANS and PRESTON, JJ., concur.

OPINION

SALINGER, J.

I.

The record is this: The original petition alleged the speaking of certain slanderous words to have been done about the 15th of March, 1916. Demurrer asserting the statute of limitations was sustained, and we may assume that, as the pleading then stood, the demurrer was rightly sustained. Later, an amended and substituted petition was filed, which made no change in the original, except that, instead of charging the slander to have been uttered about the 15th of March, 1916, it was now pleaded that said words were spoken in October, 1916, and at various times prior thereto. A demurrer again urging the statute of limitations was interposed, and once more sustained. With the rulings on these two demurrers we have no concern. The sole question is whether demurrer was rightly sustained to a second substituted and amended petition, filed on January 17, 1919. The ground of demurrer was once more the statute of limitations. But the last substitute has the further allegation that the cause of action set forth therein is the same as the one set out in the original petition; that it is meant and intended to refer to the same transaction; that the original petition mistakenly charged the slander was uttered on March 15, 1916, when, in truth, it was uttered about the 15th of October, 1916. The original suit was brought in time to save the case from the bar of the statute, and it would have been error to sustain demurrer to it on account of the statute, if it had been alleged that the slanderous words were spoken on October 15, 1916, instead of alleging, as it did do, that it was done on March 15, 1916. For the suit was begun in August, 1918. The essence of the dispute on this appeal is whether if, after suit is instituted, the petition through mistake puts the case within the bar of the statute, and subsequent pleading, referring to that mistake, makes no change in the cause of action, but merely restates it, adding nothing except that the allegation of time in the original is a mistaken one, and that the things there complained of occurred later than is there charged, the substitute states a new cause of action.

A pleading stricken out does not cease to be a part of the record, and the party who filed it may add to it an amendment; and, when that is done by proper reference, the pleading stricken out and the amendment together constitute a new pleading. Mahaska County State Bank v. Crist, 87 Iowa 415, 54 N.W. 450. An amendment may be filed, showing that, through mistake, there was no right to sue upon installments which had been declared upon; and though original action for these was barred when amendment was filed, the correction of such mistake created no new cause of action. And the amended suit was not barred. Taylor v. Taylor, 110 Iowa 207, 81 N.W. 472. True, it is held in Thayer v. Smoky Hollow Coal Co., 129 Iowa 550, 105 N.W. 1024, that an amendment which makes no change in time, place, or circumstance does not introduce a new cause of action, and is not barred, although not filed within the time for bringing the original action. This is a negative holding. It does not rule that a change of time creates a new cause of action, where the change is made by an amendment merely declaring that, through...

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