Loretto Literary & Benevolent Soc'y v. Garcia

• Decision Date: 07 June 1913
• Citation: 18 N.M. 318,136 P. 858
• Parties: LORETTO LITERARY & BENEVOLENT SOCIETYv.GARCIA ET AL.
• Court: New Mexico Supreme Court

18 N.M. 318

136 P. 858

LORETTO LITERARY & BENEVOLENT SOCIETY

v.GARCIA ET AL.

Supreme Court of New Mexico.

June 7, 1913.On Rehearing, Dec. 3, 1913.

Syllabus by the Court.

In permitting amendments, upon the trial, the court is limited by Comp. Laws 1897, § 2685 (subsection 82, Code of Civil Procedure) to such amendments as do not change “substantially the claim or defense.”Held, that the trial court was without authority, in an action in ejectment, to permit the filing of a trial amendment for specific performance of a contract to convey real estate, as such amendment introduced a new cause of action.

Additional Syllabus by Editorial Staff.

Appellee's contention that appellants waived their objections to the amended complaint in ejectment by filing an answer thereto could not be considered on rehearing, when not raised upon the first hearing of the case.

The word “claim” as used in Comp. Laws 1897, § 2685(Code Civ. Proc. subsec. 82), providing that a court may, before final judgment, amend any pleading or proceeding to conform to the facts proved if it does not substantially change the claim or defense, is synonymous with “cause of action.”

Appeal from District Court, Sandoval County; before Justice H. F. Raynolds.

Action by the Loretto Literary & Benevolent Society against Meliton Garcia and others.From judgment for plaintiff, defendants appeal.Reversed.

Under C.L.1897, § 2685, subsection 82, the trial court was unauthorized in ejectment to permit a trial amendment, seeking specific performance of a contract to convey realty.

Felix H. Lester and N. B. Field, both of Albuquerque, for appellants.

F. W. Clancy, of Santa Fé, and Marcos C. de Baca, of Bernalillo, for appellee.

ROBERTS, C. J.

[1] The original complaint in this case contained the ordinary allegations of a suit in ejectment; plaintiff alleging, among other things, that it was the owner and seised in fee of the property therein described.After the evidence was all adduced, appellee filed a trial amendment, by leave of court, over appellant's objection, retaining all the original complaint, and adding thereto paragraphs 3, 4, and 5, in which it alleged, in substance, that the deed from Barbara Leal de Garcia to Barbara Aragon de Montoya, upon which it relied to prove its title, was void because the husband failed to sign it, but claiming that plaintiff was entitled to a deed for the premises in question from the appellants by virtue of a contract made between them and Mrs. Montoya, by which they agreed to deed her the property for $600, which she had paid them, and praying that appellants be compelled to execute a deed to appellee for the premises, and that it be given a judgment for the possession of the same.By the trial amendment filed, it appears that appellee sought to set up facts entitling it to specific performance of an oral contract to convey real estate, and to secure such relief, by trial amendment to a complaint in an ejectment suit.The question presented is as to the power of the trial court to permit such an amendment upon the trial of the case, over objection timely interposed.The solution of the question depends upon the proper construction of subsection 82, § 2685, C. L. 1897, which reads as follows: “The court may, at any time before final judgment, in furtherance of justice, and on such terms as may be proper, amend any record, pleading, process, entry, return or other proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations, material to the case, or, when the amendment does not change substantially the claim or defense, by confirming the pleading or proceeding to the facts proved.”

[3] It will be observed that the section quoted limits the power of the court to permit a trial amendment to such an amendment as “does not change substantially the claim or defense.”In the case of Ellis v. Flaherty, 65 Kan. 621, 70 Pac. 585, the Supreme Court of Kansas construed the word “claim” in a code provisions, apparently identical with subsection 82supra, and held that “the word ‘claim,’ as therein used, was synonymous with ‘cause of action.’ ”This being accepted as a correct interpretation of the meaning of the word, it necessarily follows that the trial court is only authorized to permit such an amendment upon the trial of the cause, “by conforming the pleadings or proceedings to the facts proved,” as does not introduce a new cause of action or substantially change the cause of action upon trial.This being true, it would follow that if the facts herein alleged, in the amendment offered, constituted a new cause of action, the court erred in permitting it to be filed, for it is uniformly held that no amendment of a complaint can be allowed upon the trial which introduces into the case a new cause of action.Patrick v. Whitley, 75 Ark. 465, 87 S. W. 1179, and see note to case in 5 Ann. Cas. 672, where the authorities are collected.

In support of the right to file the trial amendment, the appellee relies upon the case of Pfister v. Dascey, 65 Cal. 403, 4 Pac. 393, and similar cases, holding that: “All the matters complained of related to the same property, were parts of one design to defraud, and affected all the parties who defended the action.Under these circumstances, we see no reason why an action to set aside the conveyances averred to be fraudulent, and to recover possession of the land to which such conveyances related, should not be prosecuted in the same action.This is certainly permissible under our system.Resort has been frequently had to such procedure in cases of mines where an action to enjoin the working of the mines and to recover possession of them, have been joined.”Other cases upon which it relies are: Bidwell v. Insurance Co., 16 N. Y. 263;Water Co. v. Flume Co., 108 Cal. 549, 41 Pac. 495, 29 L. R. A. 839;Tottle v. Kent, 12 Okl. 674, 73 Pac. 310.We have examined all these cases, and find that they deal with joinder of causes of action in the same complaint, and not with the power of the court to permit the introduction of a new and different cause of action upon the trial by amendment.They are all based upon code provisions, similar to subsection 33 of the New Mexico Code of Civil Procedure, which is as follows: “The plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of: First.The same transaction or transactions connected with the same subject of action.”By this provision it will be observed that the lawmaking power recognized that several causes of action might arise out of the “same transaction or transaction connected with the same subject of action,” and that such causes of action could all be joined in the same complaint.Under this provision of the Code, undoubtedly the facts set forth in the amendment in this case could have been joined with the possessory action originally, for the subject of the action in the possessory action was the land and the plaintiff's title, taken together, and any transaction connected with either the land or the title would be connected with the subject of action.McArthur v. Moffett, 143 Wis. 564, 128 N. W. 445, 33 L. R. A. (N. S.) 264.

In the case last cited, which is perhaps the best-reasoned case that can be found on the proper construction of the code provision last quoted, the court held that a statutory action to quiet title and a common-law action to recover damages for trespass upon the property involved could be joined under the statute permitting the joinder of causes of action which arose out of transactions connected with the same subject of action.In that case, however, the court recognizes that two causes of action exist, for it says: “We have before us two causes of action, one by the owner of certain lands to prevent the further assertion of a wrongful claim of title to those lands, and another to recover for a wrongful entry on the same lands by the same persons.”Upon the same reasoning, in the case now under consideration, the amended complaint would present two causes of action--one to recover possession of lands, with damages, and the other to secure specific performance of an oral contract to convey, by warranty deed, the same lands.This being true, the amended complaint would necessarily introduce into the cause, upon the trial, a “new cause of action,” not permissible as a trial amendment.

As was said in the case of Louisville & N. R. Co. v. Pointer's Adm'r, 113 Ky. 952, 69 S. W. 1108, “A plaintiff will not be allowed to amend his cause of action by changing it.The office of the amendment is to perfect or complete that which is begun that is incomplete.”

In the case of Bird v. Stout, 40 W. Va. 43, 20 S. E. 852, the court say: “An amended bill must not introduce another and different cause of suit from that of the original bill.But an amended bill is no departure from the original if it tend to promote a fair hearing of the matter of controversy on which the suit was originally really based, provided it do not introduce a new substantive cause of suit different from that stated, and different from that intended to be stated, in the original bill.An amended bill cannot be allowed containing statements inconsistent with the nature of the original bill or changing the cause of suit.By it allegations may be changed or modified, and others added, provided the identity of the cause of suit be preserved.”See, also, Edgell v. Smith, 50 W. Va. 349, 40 S. E. 402;Snead v. McCoull et al., 12 How. 407, 13 L. Ed. 1043;31 Cyc. 409;1 Ency.Pl. &Pr. 548;Zoller v. Kellogg, 66 Hun, 194, 21 N. Y. Supp. 226;Ellis v. Flaherty, supra.

Various tests have been applied by the courts for the purpose of determining whether a new cause of action is presented by way of amendment....