Kunselman v. Southern Pac. R. Co.

• Court: Arizona Supreme Court
• Writing for the Court: LOCKWOOD, J.
• Citation: Kunselman v. Southern Pac. R. Co., 33 Ariz. 250, 263 P. 939 (Ariz. 1928)
• Decision Date: 06 February 1928
• Docket Number: Civil 2689
• Parties: ELTON E. KUNSELMAN, Appellant, v. SOUTHERN PACIFIC RAILROAD COMPANY, a Corporation, and ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Appellees

263 P. 939

33 Ariz. 250

ELTON E. KUNSELMAN, Appellant, v. SOUTHERN PACIFIC RAILROAD COMPANY, a Corporation, and ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Appellees

Civil No. 2689

Supreme Court of Arizona

February 6, 1928

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.

Messrs Clark & Clark, for Appellant.

Messrs Baker & Whitney, for Appellees.

OPINION

LOCKWOOD, J.

Elton E. Kunselman, hereinafter called plaintiff, brought suit against Southern Pacific Railroad Company, a corporation, and Arizona Eastern Railroad Company, a corporation, hereinafter called defendants. After the usual formal allegations, he set up his cause of action as follows:

"That the defendants are indebted to the plaintiff in the sum of thirty thousand dollars ($30,000), on account of services rendered and moneys advanced, to and for the benefit of the said defendants and at their special instance and request between the 2d day of January, 1919,and the 5th day of December, 1921, which said sum of money the defendants agreed to and promised to repay to this plaintiff: that the plaintiff has demanded payment of the said sum from the said defendants, but that the said defendants have neglected and refused to pay the same, or any part thereof; and that the whole thereof is now due and owing and unpaid from the defendants to this plaintiff."

This complaint was filed on the fourth day of December, 1924.

No further action was taken until November 28th, 1925, when summons was issued, which was served on the defendants in the early part of December. The latter filed a motion to make the complaint more definite and certain, which motion was granted in part by the court; but plaintiff, instead of complying with said order, on January 5th, 1926, filed an amended complaint in which his cause of action was stated in the following language:

"That between the 2d day of January, 1919, and the 5th day of December, 1920, the plaintiff and the defendants had certain business dealings and relations each with the other, in the course of which the plaintiff rendered certain services and advanced certain moneys to and for the benefit of said defendants, at their special instance and request; that on said last-mentioned date, to wit, December 5th, 1920, an account of said money and services was stated between plaintiff and said defendants wherein, and whereby it was then and there agreed that the defendants were indebted to the plaintiff in the sum of thirty thousand dollars ($30,000.00), which sum so agreed to be owing as aforesaid the defendants then and there promised and agreed to pay to plaintiff within one year thereafter, to wit, on or before December 5th, 1921."

To this amended complaint defendants filed a motion to make more definite and certain a demurrer on the ground that an entirely new and separate cause of action was set up thereby, and that it showed on its face it was barred by the statute of limitations, together with a plea in bar and an answer. The demurrer was argued to the court and taken under advisement, and thereafter the trial court entered the following order:

"This matter having been heretofore submitted to the court for its consideration and decision and the court being fully advised in the premises, it is ordered that the demurrer be and the same is hereby sustained."

Plaintiff having filed no amendment within six months, defendants moved for judgment on the pleadings, which motion was granted, and plaintiff is appealing from the judgment.

Plaintiff states in his opening brief that there is but one question requiring consideration, to wit, Was the cause of action set up in the amended complaint such a departure from the original complaint as to constitute a new and different cause of action? On examining the allegations of the original and amended complaint above set forth, we are satisfied that the first was a declaration on an open account for services rendered and moneys advanced, while the second was on an account stated. plaintiff argues that such is not the case, but we think a reading of the two complaints shows his position is untenable. The question then is, Was the second cause of action on a stated account a departure from the original to such an extent, first, that the court should not have permitted the amended complaint to be filed, and, second, if its filing was permissible, that the filing could not relate back to that of the original complaint, so far as the statute of limitations is concerned?

We have had the question of the extent to which an amendment may go before us in the case of Perrin v. Mallory Com. Co., 8 Ariz. 404, 76 P. 476. Therein we state as follows:

"Paragraph 1288 [R.S.A. 1901] provides: 'All pleadings or proceedings may upon leave of the court be amended at any state of the action within such time as the court may prescribe, or they may be amended before trial without such leave upon serving the adverse party with a copy of such amended pleading or proceedings.'

"Again it is provided in paragraph 1293 that: 'The court shall in every stage of an action disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect'. . .

"Our own statute relating to amendments is so liberal that it would be difficult to extend it by construction, and we are not at liberty to place upon it limitations which the legislature has not seen fit to prescribe. It is not declared that the pleadings of the plaintiff alone may be amended, nor yet that the amendment shall be only of the cause of action or the defense already stated, but the broad language of paragraph 1288 is that: 'All pleadings or proceedings may . . . be amended.' And this may be done 'upon leave of the court . . . at any stage of the action,' or 'before trial without such leave upon serving the adverse party with a copy of such amended pleading or proceedings.' We think the statute plainly contemplates that any amendment which, during the progress of the action, the court would have power to permit in furtherance of justice, may before trial be made by the party, as a matter of right, upon the service thereof as prescribed. It would also seem clear that if, as held in Texas, a new cause of action or defense may properly be introduced by amendment 'under leave of the court . . . before the parties announce themselves ready for trial,' there would be at least equal warrant for the same practice under a statute which permits amendments to be made 'before trial without such leave.' The Code provisions of the various states relating to amendments are far from uniform. There will, however, generally be found in them some limitation the effect of which operates to prevent any substantial change of the claim or defense. No such limitation is expressed in our statute, and we feel compelled, therefore, to give it the broad interpretation which its plain terms seem to require. As we have previously observed, the only pleading of the defendant under our Code is an answer. If the answer consists of but a demurrer, it is nevertheless an answer and a pleading. While the requirement is that the answer must contain all of the defenses, and in a certain order, it does not follow that, if there has been an omission in this respect, it cannot be remedied by amendment. To deny the power of the court to permit of such an amendment would in many cases be equivalent to a denial of justice. To admit it is also to admit the right of the defendant to make the same amendment 'before trial without such leave.' But the latter is unquestionably the true intent and meaning of the law as it stands. The Legislature had the right to make our system of pleading as illogical and unscientific as it chose. If it be found, in practice, to operate unfavorably to the orderly and speedy administration of justice, relief must be sought at the fountain."

While in that case we dealt specifically with answers, the general language used by the court can only be construed as applying to any pleadings. An analogous case was before us in Arizona Eastern R.R. Co. v. Old Dominion etc. Co., 14 Ariz. 209, 127 P. 713, in which we said:

"Where a complaint has been held obnoxious to a general demurrer and an amended complaint is filed, to which amended complaint the bar of the statute of limitations is pleaded, and at the time of the filing of the amended complaint the bar of the statute is complete, unless the amendment relates back, it is our duty to ascertain if the facts alleged in the original complaint are sufficient, when considered in the light of the facts pleaded in the amended complaint, to show that the amendment is but the perfected statement of...