Mares v. Wormington
| Decision Date | 09 May 1899 |
| Docket Number | 6731 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by Ernest Mares against Harry Wormington and others. Judgment for plaintiff, and defendant Ernest C. Eddie appeals.
Reversed as to him, with directions to dismiss.
Judgment against the defendant Ernest C. Eddie, reversed, and action dismissed.
Benton Lovell & Bradley, for appellant.
The court had no authority under § 5297, Rev. Codes, to allow an amendment setting up a new cause of action, to correspond with the proofs. Such is the holding under similar statutes. St. Louis, etc. Ry. Co. v. Dodd, 27 S.W 227; Miles v. Van Horn, 17 Ind. 245; Shropshire v. Kennedy, 84 Ind. 111; Sweeter v. Hartwick, 25 N.W. 744; Smith v. Bogenschutz, 19 S.W. 667; Bruns v. Schieber, 51 N.W. 120; Egert v Wecker, 10 How. Pr. 193; Southwick v. Bank, 84 N.Y. 420; Cumber v. Schoonfeld, 12 N.Y.S. 282; Button v. Steam Tow Boat Line, 40 Hun. 422; Robbins v. Harris, 2 S.E. 70; Spice v. Steinruck, 14 Ohio St. 213; Stevens v. Brooks, 23 Wis. 196. The cause of action for the establishment and foreclosure of plaintiff's lien could not in the face of a demurrer be joined with an action for conversion. Pomeroy's Rem. § 473, 474 and 475; Cobb v. Dows, 9 Barb. 230; Colwell v. Ry. Co., 9 How. Pr. 311; Hoagland v. Ry. Co., 39 Mo. 451; Hunter v. Powell, 13 How. Pr. 221; Thompson v. Bank, 61 How. Pr. 163; McDonald v. Kountze, 58 How. Pr. 152; 1 Enc. Pl. & Pr. 195; New York & N. W. R. Co. v. Schuyler, 17 N.Y. 592, 604.
Smith Stimmel, for respondent, cited Butler v. Barnes, 12 L. R. A. 273, Paddock v. Somes, 10 L. R. A. 254; Fuchs v. Meisel, 32 L. R. A. 92; Corcoran v. Mannering, 41 N.Y.S. 1090; Fairbanks v. San Francisco, 47 P. 450; Eagle Iron Wks. v. DesMoines R. Co., 70 N.W. 193; N. W. Ry. Co. v. Prior, 70 N.W. 869.
The essential facts in this case, as disclosed by the record, are as follows: The complaint, before its amendment, as hereafter stated, embodied a single cause of action for equitable relief. Its statements of fact had reference only to a seed lien claimed by the plaintiff upon a crop of wheat raised by the defendant Wormington in 1892 upon two tracts of land in Cass county, situated some miles apart. The only reference made in the original complaint to the defendants Lynch and Eddie is embraced in the following language: "That the defendants Ernest C. Eddie and Frank Lynch have, or claim to have, some interest in or lien upon the crop grown upon the lands above described for the year 1892, as aforesaid, or some part thereof, which interest or lien, if any, is subsequent to the plaintiff's said lien; that said defendants Eddie and Lynch have taken possession of said crop of wheat, claiming to hold under their said lien or interest." Among other features of the prayer of this complaint, the plaintiff asked as follows: "That said grain, or so much thereof as may be necessary for the purpose, be sold to satisfy said lien." And further: "That the lien or interest of each of said defendants Ernest C. Eddie and Frank Lynch be adjudged to be subsequent and inferior to plaintiff's said lien." To this complaint the defendants Wormington and Lynch answered jointly by a general denial, and the defendant Eddie answered separately to the same effect. Upon the issues so joined a trial was had without a jury, at which the plaintiff offered testimony in support of the allegations of the complaint, and the defendants Wormington and Lynch offered evidence in support of their defense. At the close of the evidence, and before findings were filed, the plaintiff filed an amended complaint, upon which the trial judge indorsed the following order: The amended complaint incorporated a second cause of action, the material part of which is set out in the following language: "That when said wheat was threshed in the fall of 1892, as aforesaid, the defendants, then being in possession of said wheat, unlawfully converted and disposed of the same to their own use, to the damage of the plaintiff in the sum of $ 295.20, with interest thereon at the rate of seven per cent. per annum from the 15th day of October, 1892." In this complaint, among other things prayed for, was a money judgment against all the defendants jointly for the amount above stated. To the second cause of action as stated in the amended complaint the defendant Eddie interposed a separate demurrer upon the grounds: (1) That there is a defect of parties defendant; (2) that several causes of action have been improperly united; (3) that the complaint--i. e. the alleged second cause of action--does not state facts sufficient to constitute a cause of action. The trial court overruled this demurrer, and the defendant Eddie elected to stand on the demurrer; whereupon the trial court, after making and filing its findings, entered judgment for the plaintiff. The defendant Eddie appeals to this Court from the judgment and from the order overruling the demurrer. The judgment against Wormington was for the sum of $ 295.20, with interest; the judgment against Lynch was for $ 85.95, with interest; and Eddie was mulcted to the amount of $ 123.30, with interest. Costs were adjudged against all the defendants in the sum of $ 72.50.
We notice here that one reason given by the court below for allowing the complaint to be amended was to make it conform to the facts proved. The evidence was undisputed, and established the following facts: First, in 1892, the defendant Wormington raised a crop of wheat upon two quarter sections of land in Cass county, and upon which crops the plaintiff had a seed lien. The defendant Lynch was interested as part owner in one of the tracts, and the defendant Eddie was the agent of the administrator of an estate to which the other tract had once belonged, but the same had been previously sold to defendant Wormington on the crop-payment plan. The defendant Wormington, after threshing the crop turned over to Lynch portions thereof by loading the same in cars, and shipping it to Lynch at Duluth, Minn.; and he also shipped to Eddie, at Duluth, a certain other part of said crop; but these shipments were made at different times, and were wholly independent of each other, and there was no community of interest as between defendants Lynch and Eddie, but, on the contrary, their claims upon the wheat were wholly distinct from each other, and neither had anything to do with the grain shipped to the other. Nor does it appear that they have any common interest in either of the two parcels of...
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