Idaho Placer Mining Co., Ltd. v. Green

• Decision Date: 12 February 1908
• Parties: THE IDAHO PLACER MINING CO., LTD., a Corporation, Respondent, v. CHARLES GREEN, Appellant
• Court: Idaho Supreme Court

94 P. 161

14 Idaho 294

THE IDAHO PLACER MINING CO., LTD., a Corporation, Respondent, v. CHARLES GREEN, Appellant

Supreme Court of Idaho

February 12, 1908

AMENDED PLEADINGS-JUDGMENT ON PLEADINGS-DENIALS-REFEREE'S DUTIES-REPORT.

1. Amendments to pleadings rest largely in the discretion of the court, and unless the exercise of such discretion deprives the complaining party of some substantial right, it is not error.

2. Denial of the facts, showing an indebtedness, puts such facts in issue, and requires the plaintiff to prove the same before he can recover a judgment thereon.

3. When a party moves for judgment on the pleadings, he not only, for the purposes of his motion, admits the truth of the allegations of his adversary, but must also be deemed to have admitted the untruth of all his own allegations which have been denied by his adversary.

4. Where issues of fact are raised by the pleadings, which require evidence to establish before the court could intelligently determine whether such issues are with the plaintiff or defendant, it is error to enter judgment on the pleadings.

5. The failure to offer proof by the party having the affirmative is not grounds for entering a judgment on the pleadings.

6. A judgment on the pleadings is allowable, not because of lack of proof, but because of lack of issue.

7. The powers of a referee are to be determined by the stipulation or order of reference.

8. Where a cause is referred to a referee to hear the testimony and submit findings for the guidance of the court, such referee has no power or authority to enter judgment on the pleadings.

9. Where a cause has been referred to a referee to hear testimony and submit findings to the court, and he reports to the court that no evidence was offered, and on that ground he sustained a motion for judgment on the pleadings, and the court approves such report and the findings of the referee the same is error both on the part of the referee and the court.

10. A finding of the court that the sum of $10,000 came into the hands of the defendant, and the defendant expended the sum of $6,000, and was indebted to the plaintiff for the balance $4,000, when such latter fact was denied by the answer, and no evidence was offered by the plaintiff to support such allegation, leaves such finding without any evidence whatever to support it, and it is error on the part of the court to make the same.

11. Where the allegations of the complaint are denied, in the absence of proof on the part of the plaintiff, the court should dismiss the plaintiff's complaint. And where a counterclaim is set forth and no proof is offered to support the same, it likewise should be dismissed.

(Syllabus by the court.)

APPEAL from the District Court of Seventh Judicial District for Washington County. Hon. Ed. L. Bryan, Judge.

Action for debt. Judgment for plaintiff. Defendant appeals. Reversed.

Judgment reversed and a new trial granted and cause remanded. Costs awarded to the appellant.

L. L Feltham, for Appellant.

"The power of the court to grant leave to amend extends to all the pleadings and proceedings in an action, including the prayer for relief, and whenever the desired amendment is in furtherance of justice it should be granted." (Moak's Van Santvoord's Plead., 3d ed., 819; Fitman's Trial Proc., sec. 512; Kirstein v. Madden, 38 Cal. 158; Pierson v. McCahill, 22 Cal. 128; Farmers' Nat. G. Bk. v. Stover, 60 Cal. 388; Burns v. Scooffy, 98 Cal. 271, 33 P. 87; 3 Estee's Pleads., secs. 4448 and 4450 f; Guidery v. Green, 95 Cal. 630, 30 P. 787.)

"A trial court's discretion as to whether an amended answer should be allowed should be so exercised as to bring about a judgment on the merits of the controversy between the parties." (Rose v. Doe, 4 Cal.App. 680, 89 P. 137; Stringer v. Davis, 30 Cal. 321.)

Under secs. 4228, 4229, Rev. Stat., great liberality must be exercised in allowance of amendments to pleadings. (Kroetch v. Empire Mill Co., 9 Idaho 277, 74 P. 868; Kindall v. Lincoln Hdw. & Imp. Co., 10 Idaho 13, 76 P. 992.)

When a party moves for judgment on the pleadings, he not only, for the purposes of his motion, admits the truth of all the allegations of his adversary, but must also be deemed to have admitted the untruth of all his own allegations which have been denied by his adversary. (Walling v. Bown, 9 Idaho 184, 72 P. 960; Mills Nov. Co. v. Dunbar, 11 Idaho 671, 83 P. 932; Inland L. & T. Co. v. Thompson, 11 Idaho 508, 114 Am. St. Rep. 274, 88 P. 933; Rice v. Bush, 16 Colo. 484, 27 P. 720.)

"A judgment on pleadings can be sustained only when the admitted facts warrant it, and any evidence that might be produced respecting disputed matters would not affect it." (Mills v. Hart, 24 Colo. 505, 65 Am. St. Rep. 245, 52 P. 680; Perrin v. Smith, 39 Colo. 404, 89 P. 648.)

The authority of the court to permit departures from the regular order of proof is not an arbitrary power, but is essentially judicial in its character. And when it clearly appears that the rights of either party have been infringed, this ruling of the trial court will be reversed on appeal. (15 Ency. of Pl. & Pr. 386.)

"The order of reference is the source of the referee's power, and he has no authority other than that conferred upon him by such order." (17 Ency. of Pl. & Pr. 1020.)

Ed. R. Coulter, for Respondent.

"A decision of the trial court will not be disturbed on appeal except when the exercise of such discretion has deprived the party complaining of some substantial right. It has been held that such amendments (amended answer) should not be allowed after a new trial has been granted nor when amendments offered deny matters before admitted by the pleadings to be true." (Palmer v. Utah N. Ry. Co., 2 Idaho 382, 16 P. 553; Bliss on Code Pleadings, sec. 430; Harrison v. Hastings, 28 Mo. 346; Small v. Harrison, 10 Idaho 499, 79 P. 461; Harney v. Corcoran, 60 Cal. 314.)

"A referee upon a reference to try the issues and report a judgment can exercise all the powers of a judge concerning the trial of the cause referred." (Plant v. Fleming, 20 Cal. 82; Stimson v. Estes, 3 Ore. 521; Keokuk Co. v. Howard, 43 Iowa 354; Palmer v. Palmer, 13 How. Pr. 363; Phelps v. Peabody, 7 Cal. 50; Wood v. Missouri S. Ry. Co., 3 Mo.App. 602.)

The burden of proof was on the appellant. "Where the plaintiff has proved the existence of the debt sued on, the onus is on the defendant to prove that it has been paid." (Malone v. Ruffino, 129 Cal. 514, 79 Am. St. Rep. 127, 62 P. 93; Dirks v. Cal. S. & D. C., 136 Cal. 84, 68 P. 487; Great Western R. Co. v. Bacon, 30 Ill. 347, 83 Am. Dec. 199; 16 Cyc. 928.) In the case at bar this proof is admitted by the pleadings.

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

By this action the plaintiff sues to recover the sum of $ 4,000, alleging that there came into the hands of the defendant the sum of $ 10,000, funds of the Idaho Placer Mining Company, the assignor of the plaintiff, and that of said sum of defendant expended the sum of $ 6,000 in building and erecting a certain dredge, and in purchasing tools and supplies; and that of said sum the defendant still has in his hands $ 4,000, for which he has failed and refused to account to the plaintiff. This complaint was filed in the district court of Washington county on April 12, 1906. On July 23, 1906, the defendant filed an answer and counterclaim. In the answer the defendant admits that the sum of $ 10,000, funds of the Idaho Placer Mining Company, came into his hands, and that he expended the sum of $ 6,000 in building and erecting a certain dredge and in purchasing tools and supplies, and alleges "the facts to be, that he paid, laid out, and expended the whole of said $ 10,000 in the building and equipment of said dredge, etc., together with a further sum of $ 1,000, which more fully appears in his counterclaim." He then denies that of the said sum of $ 10,000 he still has the sum of $ 4,000, or any other sum or amount whatever, for which he has failed or refused to account; and denies that there is now due, owing or unpaid, from the defendant to the plaintiff, the sum of $ 4,000 or any other sum. He then sets up a counterclaim for $ 11,000, or $ 1,000 in excess of the amount furnished by the plaintiff's assignor, no part of which, he alleges, has been paid; and a further counterclaim for the sum of $ 1,800, salary as superintendent in the construction of said dredge, for which he asks judgment. The plaintiff answered the counterclaim and denied the allegations thereof.

With this condition of the pleadings, on September 26, 1906, a stipulation was entered into by the parties in which it was agreed that the action be referred to Honorable Stewart H. Travis, "to take proof and submit findings to the court, and that the findings should not be final or the judgment of the court, but that they be made for the assistance of the court in rendering his decision." Afterward, and on February 7, 1907, no action having been taken before the referee, the defendant applied to the district court for permission to serve and file an amended answer. This application was resisted by counsel for the plaintiff, and on the same day was denied by the court.

This is assigned as error. The defendant made no showing to the trial court why it was necessary to file this amended answer, and offered no excuse for the delay, why such answer was not presented at an earlier date. It will be observed that the complaint was filed in said court on April 12, 1906, and the original answer on July 23, 1906, and the cause was referred on September 26, 1906, and the application to amend was made on February 7, 1907. The defendant having made no showing to the court why this application was not made at an earlier...