Oliver v. Raymond

• Decision Date: 15 May 1901
• Citation: 108 F. 927
• Parties: OLIVER v. RAYMOND et al.
• Court: U.S. District Court — Eastern District of Wisconsin

108 F. 927

OLIVER v. RAYMOND et al.

United States Circuit Court, E.D. Wisconsin.

May 15, 1901

Miller Noyes & Miller, for plaintiff.

Ryan Ogden & Bottum, for defendant.

SEAMEN District Judge.

The proposed amendment states an additional cause of action of the same nature and arising out of the same course of transactions alleged in the original complaint; and it is tendered, as I understand the situation, within the time when an amendment is allowable as of course under the state practice. That the plaintiff could have united in the original complaints this cause of action with the one therein set up is unquestionable, and its introduction here may save instituting a second action, tending 'to a multiplicity of suits, which the law abhors. ' Stein v Benedict, 83 Wis. 603, 611, 53 N.W. 891. Its allowance would seem to be 'in furtherance of justice' between the parties, and should be granted, unless it is barred by the rules or practice governing this court. Section 2830 Rev.St.Wis. 1898, authorizes the allowance of amendments at the discretion of the court when the new allegations are 'material to the case,' with a provision that an amendment 'conforming the pleading or proceeding to the facts proved' shall 'not change substantially the claim or defense. ' Counsel for the defendant contends that the rule is well settled by decisions of the supreme court of Wisconsin that no amendment can be thus allowed which introduces a 'new, separate, and distinct cause of action,' and cites Newton v. Allis, 12 Wis. 378; Stevens v. Brooks, 23 Wis. 196; Wheeler v Russel, 93 Wis. 136, 67 N.W. 43; Geary v. Bennett, 65 Wis. 554, 27 N.W. 335. But in each of these cases the amendment proposed a change of the original cause of action, which was refused by the trial court, and such ruling was approved; in other words, it was not error to deny the motion under the circumstances disclosed. The strongest expression against such amendment is found in Stevens v. Brooks, supra,-- that 'a new and different cause of action cannot be substituted for that on which the action was commenced,' except 'under very extraordinary circumstances.' Yet in Packet Co. v. Shaw, 37 Wis. 655, 19 Am.Rep. 781, and Vliet v. Sherwood, 38 Wis. 159, such amendments were sanctioned as just allowances, without unusual circumstances; and in Morgan v. Bishop, 61 Wis. 407, 21 N.W. 263, the general doctrine of liberality in that regard is clearly stated. On careful examination of the Wisconsin cases, I am satisfied that no ruling is intended to deprive ...