Monarch Lumber Co. v. Haggard

• Decision Date: 07 April 1961
• Docket Number: Nos. 10097,s. 10097
• Citation: 360 P.2d 794,139 Mont. 105
• Parties: MONARCH LUMBER COMPANY, a Corporation, Plaintiff and Appellant, v. Lawrence HAGGARD and Gloria Haggard et al., Gerald A. LaMoure and Helen LaMoure et al., John F. Rung and Elaine Rung et al., and Industrial Realty Company, a Corporation, et al., Defendants and Respondents. to 10100.
• Court: Montana Supreme Court

Page 794

360 P.2d 794

139 Mont. 105

MONARCH LUMBER COMPANY, a Corporation, Plaintiff and Appellant, v. Lawrence HAGGARD and Gloria Haggard et al., Gerald A LaMoure and Helen LaMoure et al., John F. Rung and Elaine Rung et al., and Industrial Realty Company, a Corporation et al., Defendants and Respondents.

Nos. 10097 to 10100.

Supreme Court of Montana.

April 7, 1961.

Church, Harris, Johnson, Williams & Lovell, Great Falls, Keller & Magnuson, Helena, for appellants.

Charles C. Lovell, Great Falls, and Melvin E. Magnuson, Helena, argued orally.

Mahan & Mahan, Leo J. Kottas, Stanley R. Foot, and Skedd, Harris & Massman, Helena, for respondents.

Thomas H. Mahan, Helena, Leo J. Kottas, Stanley R. Foot, Lloyd Skedd, Helena, argued orally.

Michael J. Hughes and George T. Bennett, Helena, amici curiae.

George T. Bennett argued orally.

CASTLES, Justice.

These appeals are brought by the appellant from judgments of dismissal which were entered in favor of the respondents in each of four consolidated causes.

The appellant in each of the consolidated causes is the Monarch Lumber Company which Company filed complaints to foreclose mechanics' liens against the homes of the respondents in three of the causes and against the business premises of the respondent in the other cause. Also named as defendant in each of the causes is the administrator of the estate of the deceased contractor to whom the appellant claims it furnished materials which went into the construction of the properties of the respondents.

All of the causes involve substantially similar questions which arise solely on the pleadings although the pleadings in cause No. 10097 (respondents Haggards) are somewhat different than those in the other causes, and there are certain considerations in that cause which are not germane to the other three causes. These considerations relating to cause No. 10097 also involve questions of pleading and will be considered at this point in the opinion.

In cause No. 10097 the pleading and procedure was as follows:

(1) Appellant filed its complaint to foreclose a mechanic's lien filed against the property of the respondents Haggards.

(2) Respondents Haggards interposed a general demurrer to this complaint.

(3) Appellant filed its amended complaint before any ruling had been made on the general demurrer to its original complaint.

(4) Respondents Haggards interposed a general demurrer to the amended complaint.

(5) Respondents Haggards' general demurrer to the amended complaint was sustained and the appellant was given twenty days in which to further plead.

(6) Appellant filed its second amended complaint.

(7) Respondents Haggards filed a motion to strike which is set out in part as follows:

'Come now the defendants [respondents Haggards] * * * and move the court for an order striking the amended complaint of the plaintiff above-named in the above-entitled cause from the records and files of said action upon the grounds and for the reason that said purported amended complaint is identical in substance and a repetition of the original complaint filed by said plaintiff in the above-entitled cause and to which original complaint a general demurrer on the part of these defendants was sustained by the above-entitled court. * * *' Emphasis supplied.

(8) The court sustained this motion to strike what was designated as the amended complaint on the ground that the amended complaint is identical in substance and a repetition of the original complaint to which a demurrer was sustained. The court then ordered the proceedings dismissed.

The contention of the appellant is that since both the motion to strike and the order sustaining the motion to strike were directed to the amended complaint, the second amended complaint is still outstanding and thus the cause should not have been dismissed. This contention is without merit.

It should be noted that no ruling was ever made on the demurrer to the original complaint and the appellant submitted an amended complaint before any such ruling had been made. However, the demurrer to the amended complaint was sustained and the appellant then submitted its second amended complaint. After the second amended complaint was submitted, the motion to strike and the order sustaining the motion to strike were made.

It is obvious that although the motion to strike and the order sustaining such motion to strike were erroneously directed to the amended complaint they were meant to be directed to the second amended complaint for these reasons:

(1) Since both the motion to strike and the order sustaining it followed the filing of the second amended complaint in point of time;

(2) Since a general demurrer had already been sustained to the amended complaint nd therefore a motion to strike the amended complaint would have been a useless act, and;

(3) Since both the motion to strike and the order sustaining it stated the reason therefor was that the amended complaint was a repetition of the original complaint to which a demurrer had been sustained and a demurrer had not been sustained to the original complaint, but, rather to the amended complaint. Therefore, looking to substance rather than form, we hold that the motion to strike and the order sustaining it were directed to the second amended complaint. See Frati v. Jannini, 226 Mass. 430, 115 N.E. 746. However, this does not close the inquiry as to cause No. 10097 since it only puts the pleadings in that cause in the same situation as those in the other three consolidated causes.

In cases No. 10098 (respondents LaMoures), No. 10099 (respondents Rungs), and No. 10100 (respondent Industrial Realty Co.), the pleadings and procedure are substantially similar and are as follows:

(1) Appellant filed complaints to foreclose mechanics' liens against the premises of each of the respondents.

(2) Respondents interposed general demurrers to each of the complaints.

(3) The court made orders sustaining respondents' general demurrers.

(4) Appellant filed amended complaints in each of the actions.

(5) Respondents filed motions to strike each of the amended complaints on the grounds that they were repetitious of the original complaints to which general demurrers had been sustained.

(6) Respondents' motions to strike the amended complaints were sustained and each of the causes dismissed.

In cause No. 10097 the amended complaint is identical to the original complaints in the other three causes except for the names of parties and the descriptions of the properties claimed to be subject to the mechanics' liens. All further pleadings in that cause are similar to those in the other three except that the pleading which is identical to the amended complaints in the other three causes is designated as the second amended complaint in cause No. 10097. Therefore, the remaining questions presented on this appeal are the same in all four of the consolidated causes. However, the second amended complaint in cause No. 10097 will be referred to as the amended complaint and the amended complaint in that cause will hereinafter be referred to as the original complaint for the sake of clarity in considering that cause with relation to the other three.

Appellant's specifications of error raise three further questions for consideration on this appeal. These questions will be considered separately.

The first question is whether the orders sustaining the respondents' motions to strike the amended complaints had the effect of reinstating the original complaints and restoring the pleadings to the situation which existed after the demurrers had been sustained to the original complaints.

The respondents contend that the effect of filing an amended complaint after a demurrer has been sustained to the original complaint is to render the original complaint functus officio, and therefore this court cannot consider the sufficiency of the original complaint or the correctness of the district court's ruling on the demurrer to the original complaint after the amended complaint has been stricken. This contention is without merit.

Respondents have cited the well-established rule in Montana that an amended pleading supersedes an original pleading and the original pleading becomes functus officio. Ben Kress Nursery Co. v. Oregon Nursery Co., 45 Mont. 494, 124 P. 475; Hansen v. Goodrich, 56 Mont. 140, 181 P. 739; Berne v. Stevens, 67 Mont. 254, 215 P. 803. However, in each of the cases which the respondents have cited for this proposition the amended pleading was not stricken from the records and files, as was true in the present appeals and therefore these cases are not authority for the situation in the instant appeal.

Where an amended pleading has been stricken the pleadings are restored to their status prior to the time the amended pleading was filed. Wapello State Savings Bank v. Colton, 143 Iowa 359, 122 N.W. 149; Adams v. Webb, 104 Okl. 180, 230 P. 878; Weeks v. Bailey, 35 N.M. 417, 300 P. 358; Abrahamson v. Northwestern Pulp & Paper Co., 141 Or. 339, 15 P.2d 472, 17 P.2d 1117; Aetna Life Ins. Co. v. Phillips, 10 Cir., 1934, 69 F.2d 901.

Respondents contend...