Mantle v. Dabney

• Decision Date: 28 October 1907
• Citation: 47 Wash. 394,92 P. 134
• Parties: MANTLE v. DABNEY.
• Court: Washington Supreme Court

92 P. 134

47 Wash. 394

MANTLE v. DABNEY.

Supreme Court of Washington

October 28, 1907

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by Lee Mantle against Joseph B. Dabney. Judgment for plaintiff. Defendant appeals. Affirmed.

John C Hogan, for appellant.

W. H Abel, A. M. Abel, and Chas. W. Smith, for respondent.

ROOT J.

This case was here once before, and may be found reported in 87 P 122, to which reference is made for a statement of the facts out of which the action arose. After the remittitur reached the lower court, the appellant, Joseph B. Dabney, made a motion for leave to amend his answer by pleading a section of the statute of California showing that the husband had control and management of the community property, and also by pleading that he was authorized by his wife to make the agreement whereby the deed to certain California property was retained by Mantle and Hodgens for the security of the note herein sued on. The trial court refused to permit said amendment, upon the ground that it had no discretion, but, under the decision of this court, must enter a judgment against said defendant. From the judgment thereupon entered, this appeal is prosecuted.

In the matter of allowing amendments, much latitude is permitted under our statutes; and we are not prepared to say that there could not be conditions justifying an amendment after a case was remanded as was this. But, under the circumstances here found, we do not think that any error was committed by the court in its refusal. That part of the proposed amendment alleging that appellant's wife consented to the giving of the security is inconsistent with the answers of both appellant and wife, and with the evidence and theory of the case as presented upon the first trial. The California statute, if pleaded, would not constitute a defense to the action. The Montana statute is as follows: 'Sec. 1290. There is but one action for the recovery of debt, or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter. In such actions the court may, by its judgment, direct a sale of the encumbered property (or so much thereof as may be necessary), and the application of the proceeds of the sale to the payment of the costs of the court and the expenses of the sale, and the amount due the plaintiff; and if it appear from the sheriff's return that the...