Rae v. Chi., M. & St. P. Ry. Co.

• Decision Date: 02 November 1905
• Citation: 14 N.D. 507,105 N.W. 721
• Court: North Dakota Supreme Court
• Parties: RAE v. CHICAGO, M. & ST. P. RY. CO.

14 N.D. 507

105 N.W. 721

RAE

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of North Dakota.

Nov. 2, 1905.

Syllabus by the Court.

The general rules governing the exercise of the discretionary power of the court with respect to allowing amendments to pleadings are the same in justice court as in district court.

It was not error in justice court to allow a complaint, which alleged that plaintiff's cattle had been killed by the negligent running of defendant's train, to be amended before trial so as to allege that the injury was due to the failure of the defendant to keep its right of way fence in repair.

Where the specifications of error in the notice of appeal from a justice's judgment on questions of law only do not raise any question as to the sufficiency of the pleading, that question cannot be raised on appeal, where the defect in the pleading is a mere defective statement of the cause of action or defense, as distinguished from a failure to show any right of recovery or defense.

Appeal from District Court, Cass County; Charles A. Pollock, Judge.

Action by Robert Rae against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment affirming a judgment in a justice court for plaintiff, defendant appeals. Affirmed.Ball, Watson & Maclay, for appellant. Barnett & Richardson, for respondent.

ENGERUD, J.

Plaintiff recovered judgment in justice court for damages for the negligent killing of some cattle by the defendant. The original complaint averred that the cattle were run over and killed by reason of defendant's carelessness in the operation of its train. Before trial, and before defendant had filed any answer, the plaintiff was permitted to amend the complaint so as to allege that the negligence which caused the injury complained of was the fact that the defendant had neglected its statutory duty to keep in repair a fence erected by it on the line between plaintiff's pasture and the railroad right of way. The defendant objected to the allowance of the amendment on the ground that the matter alleged therein was a departure from the original cause of action and constituted a wholly new and different cause of action, which the defendant was not prepared to meet. After allowing the amendment the justice continued the case to a subsequent date. On the adjourned day the defendant again appeared and renewed its objection to the amendment of the complaint, and the objection was again overruled. The defendant thereupon stated that he declined to file any answer in the case, and would stand on the objections theretofore interposed. The justice heard the plaintiff's evidence, and rendered judgment in his favor. The defendant appealed to the district court on questions of law, specifying as error the rulings of the justice allowing the amendment. The district court affirmed the justice's judgment, and defendant thereupon appealed to this court.

Appellant admits that the same general rules prevail in justice court as in district court with respect to the allowance of amendments, and we have recently so held in Morgridge v. Stoefer (decided at this term) 104 N. W. 1112. Appellant contends that it is never permissible to amend so as to add to or substitute for the original cause of action a new or different one, and that the amendment in this case was a violation of that rule, because the original complaint averred neglect of a common-law duty, and the amendment alleged omission of a statutory duty. It is doubtless true, in a limited sense, that the amendment set forth a new and different cause of action and was a substantial departure from the cause of action originally alleged. The mere fact that the amendment constitutes a departure in pleading, or adds or substitutes a new or different cause of action in the strict sense of those terms, is no good reason for disallowing an amendment. The statute nowhere forbids such an amendment. It directs that amendments shall be allowed at any stage of the...