Kafka v. O'Malley
| Decision Date | 18 April 1946 |
| Docket Number | No. 34178.,34178. |
| Parties | KAFKA v. O'MALLEY et al. (KAHLERT et al., Garnishees; MURPHY et al., Interveners). |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey County; Albin S. Pearson, Judge.
Action by Theresa Kafka against Raymond G. O'Malley and Frank T. O'Malley, individually and doing business as O'Malley and O'Malley, to recover amount allegedly collected by defendants, as attorneys, for plaintiff in foreclosure of a real estate mortgage, wherein William G. Kahlert and others doing business as Jamieson & Co. were named as garnishees, and Lillian Murphy and others intervened. From an adverse judgment, the defendants appeal.
Affirmed.
Raymond G. O'Malley, of St. Paul, pro se.
Frank T. O'Malley, of Glencoe, pro se.
Randall, Smith & Blomquist, of St. Paul (I. E. Krawetz, of St. Paul, on the brief), for plaintiff-respondent.
This appeal involves three questions: (1) Whether a motion to strike an answer as sham and frivolous should be dismissed where within the time for making amendments as of course and before the hearing on the motion defendant amends the answer, but in such a way as to leave it vulnerable to the motion to strike, and after interposing the amended answer procures continuances of the hearing on the motion to strike and in open court at one of the adjournments pays to plaintiff a substantial part of the amount claimed in the complaint; and, if the motion should not be dismissed, whether it reaches the amended answer; (2) whether we can predicate an affirmance upon a ground appearing as a matter of law in the record, but not considered by the trial court; and (3) whether a party against whom relief is sought upon a motion is entitled to affirmative relief upon a countermotion presented without any notice at the hearing on the original motion.
In this action plaintiff asserts a joint and several liability against defendants as partners and individuals. The complaint alleges in effect that defendants were partners engaged in the practice of law; that plaintiff retained them to foreclose a certain real estate mortgage upon which there was due $6,000 and interest; that defendants collected the money; and that, although many demands were made, defendants failed to remit. Defendants interposed separate answers denying liability. We are not concerned now with the answer of defendant Frank T. O'Malley. Defendant Raymond G. O'Malley in his answer interposed two separate defenses: the first, a general denial; the second, in addition to a general denial, a specific denial that defendants were partners, and allegations that plaintiff did not employ or consult them as partners, believe them to be such, or assert liability against them as such, and that in consequence thereof she was "estopped to now assert the contrary."
Plaintiff moved to strike the answer of defendant Raymond G. O'Malley as sham and frivolous on a showing by the affidavits of two of her counsel, Moritz J. Blomquist and Donald B. Smith, which was in no way disputed or contradicted, that the allegations in the answer were false. Mr. Blomquist stated in his affidavit that, in an interview for the purpose of collecting from Mr. O'Malley the money due plaintiff, Mr. O'Malley admitted that he had been retained by plaintiff to foreclose the mortgage, for which she paid him a fee of $150; that he knew that a payment of $325 had been made by the mortgagors and that the balance of $6,000 had been paid; that at plaintiff's request he had paid $400 of the money collected by him to her brother; that he would have to check his records to be certain as to these facts; that he had the money on deposit in banks; that, because of reasons concerning his own taxes, he preferred to issue a check for the amount due to plaintiff after December 15, 1944; and that after the date mentioned he would do so.
Mr. Smith's affidavit showed that he had numerous conferences with Mr. O'Malley concerning the matter before and after the commencement of this action; that in effect Mr. O'Malley several times admitted his employment by plaintiff; that he had collected the money; that he prepared a written statement showing that he had collected as principal and interest $7,628.09, and disbursed, at plaintiff's request, $460, leaving a balance in his hands of $7,168.09—the precise amount demanded in the complaint; that he put off paying to plaintiff or to her attorneys the amount he thus admitted he owed her; and that, after this action was commenced, he stated that he was glad it had been commenced because of the fact that the commencement thereof set a definite time within which he was required to pay.
The motion was set for hearing on January 26, 1945, but was continued from time to time at the request of defendant Raymond G. O'Malley until March 23, 1945, when it was heard and submitted. At the hearing he moved to dismiss the motion to strike upon the ground that he had interposed an amended answer. He took the position that the amended answer superseded the original one, and that, because of that fact, the motion to strike should be dismissed. The trial judge refused to consider the amended answer for the reason that he thought there was no showing that it had been served within the time allowed for an amendment. Defendant contends that the affidavit of service shows that the amended answer was served on plaintiff's attorneys at 1:30 p.m. on January 26, 1945. We shall refrain from any further statement of the evidence and circumstances concerning that fact, because we shall assume, for purposes of decision, contrary to the views of the trial judge, that the amended answer was served at the time defendant claims it was.
The amended answer, the same as the original, alleged two separate defenses. The first defense was a general denial. The second defense, in addition to a denial that plaintiff employed defendant to foreclose the mortgage, alleged that he was retained by her "to advise" her concerning the mortgage and that "eventually" he was retained "to manage, look after, sell in whole or in part, negotiate with the mortgagors and others; to liquidate so as to increase the value of her security, using his best judgment and efforts with full and absolute power and authority, and at his discretion, to do whatever might be necessary or desirable to liquidate or collect the same, or substitute other securities therefor"; that he rendered services in relation to such matters of "very substantial value"; and that "upon an accounting being had and taken thereof this answering defendant is entitled to offset the amount as to [so] determined and pay the plaintiff the balance shown thereby as due her, upon the trial of this action."
At one of the adjournments, on February 2, 1945, defendant Raymond G. O'Malley in open court paid on account to plaintiff's attorneys the sum of $2,000.
At the hearing on March 23, defendant Frank T. O'Malley presented a countermotion in writing, but without serving any notice of same upon plaintiff, demanding that the action be dismissed as to him upon numerous grounds.
The trial judge made an order: (1) Denying the motion of defendant Raymond G. O'Malley to dismiss plaintiff's motion to strike; (2) striking his answer as sham and frivolous; (3) striking the amended answer as not having been served in time; and (4) denying defendant Frank T. O'Malley's motions with a statement that no notice thereof had been served on plaintiff. Thereafter, without further order of court, plaintiff entered judgment against the defendant Raymond G. O'Malley for the amount alleged in the complaint and interest, less the sum of $2,000 paid in open court, and for her costs and disbursements. Defendants appeal from the judgment.
1. Ordinarily, where a motion to strike an answer as sham and frivolous is made before the time to amend the answer has expired and the defendant, before the expiration of such time, interposes an amended answer as of course and of right, the motion to strike should be dismissed. Dorf v. Corsa, 163 N.Y.S. 602; 1 Bancroft, Code Pleading, etc. (10-year Supp.) § 561, p. 308; 49 C.J., Pleadings, § 779, p. 562.1 The reasons are plain. The right to amend once within 20 days as of course is conferred by Minn.St.1941, § 544.29, Mason St. 1927, § 9279. The right to amend is not lost by plaintiff's making a motion to strike the answer within the time allowed for amending. Sutton v. Wegner, 72 Wis. 294, 39 N. W. 775. An amended answer supersedes the original. In First State Bank v. C. E. Stevens Land Co., 119 Minn. 209, 137 N.W. 1101 43 L.R.A.,N.S., 1040, Ann.Cas.1914A, 1146, we said that an amended pleading stops all further use of the original. The original pleading is abandoned by the amendment and is no longer part of the pleader's averments against his adversary; it is functus officio. State ex rel. Talaba v. Moreland, 132 Ohio St. 71, 5 N.E.2d 159. Furthermore, an amendment generally changes the fact situation with respect to the rights of the parties. The motion to strike reaches only the original pleading as the one at which it is aimed, and not the amended pleading, which entirely supersedes the original and stands on its own bottom. In order to strike the amended pleading, another and separate motion for the purpose is necessary. Protection Life Ins. Co. v. Foote, 79 Ill. 361.
A defendant may waive the right to a dismissal of a motion to strike the answer upon the ground that he interposed an amended answer. Where, as here, the defendant treats the motion to strike the answer as applicable to the amended answer, defendant waives the rule that the motion should be dismissed because of his interposition of the amendment. Bernert v. Multnomah Lbr. & Box Co. 119 Or. 44, 247 P. 155, 248 P. 156. See Evinger v. Moran, 14 Cal.App. 328, 112 P. 68. We think that, as a matter of law, defendant Raymond G. O'Malley waived the right to a dismissal...
To continue reading
Request your trial