Reader v. Farriss
| Decision Date | 07 December 1915 |
| Docket Number | Case Number: 7575 |
| Citation | 49 Okla. 459,153 P. 678,1915 OK 1027 |
| Parties | READER v. FARRISS. |
| Court | Oklahoma Supreme Court |
¶0 1. QUO WARRANTO--Right of Action--Possession of Office. Quo warranto, or a proceeding in the nature thereof, lies only against one who is in the possession and user of the office, and not against one who merely lays claim to the office, or who has never been admitted thereto.
2. PLEADING--"Supplemental Petition"--Right to File. If, on the facts stated in the petition, no cause of action exists against the defendant, and no relief can be granted against him on those facts, subsequently occurring facts cannot be made a part of the plaintiff's case, and he will not be permitted to file a supplemental petition alleging such additional facts to enable him to maintain the action which he has instituted, as the office of a supplemental complaint is not to supply facts which, being necessary to the maintenance of the action, have been omitted from the original complaint, but is to bring into the record new facts which will enlarge or change the kind of relief to which the plaintiff is entitled, and enable the court to render a final judgment upon the facts existing at the time of its rendition.
3. PLEADING--Defective Petition--Cure by Supplemental Petition. If the cause of action which it was sought to enforce by the original petition did not exist at the time when that pleading was filed, it cannot be created, cured, or aided by matters subsequently occurring and set up in a supplemental petition.
Error from District Court, McClain County; W. M. Bowles, Assigned Judge.
Action in the nature of quo warranto by Frank Farriss against Mark Reader. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
See, also, Farriss v. Reader, post, 153 P. 682.
Nagle & Reynolds, for plaintiff in error.
Dorset Carter and Franklin & Mauldin, for defendant in error.
¶1 This was an action in the nature of quo warranto, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, for the purpose of trying the title to the office of sheriff of McClain county. The parties hereafter will be designated "plaintiff" and "defendant," respectively, as they appeared below.
¶2 It seems that the parties were rival candidates for the office of sheriff at the election held in November, 1914, and that the certificate of election was issued to the defendant, who was the Socialist candidate; whereupon this quo warranto proceeding was instituted by the plaintiff, who was the Democratic candidate, prior to the time either of the candidates was entitled to or had taken possession of the office. After a motion to strike the petition on the ground that it was prematurely filed was overruled, the defendant continued to save the question raised by his motion to strike, but finally issues, both of law and fact, were joined, and the cause was duly set for trial at a date subsequent to that on which the defendant had taken the oath of office and entered upon the duties of his office as sheriff. Upon the cause being called for trial, the defendant again objected to any further action therein, upon the ground that it was prematurely commenced, whereupon the court, without requiring any previous notice to the defendant or, making any terms as to costs, granted leave to file instanter a supplemental petition alleging, in effect, that subsequent to filing his original petition the defendant entered into actual possession of the office, and is now performing the duties thereof. The trial court also entered an order requiring the defendant to file his answer to the supplemental petition within 24 hours. At the expiration of the 24-hour period the court overruled a motion for a continuance filed by the defendant, and upon his refusal to answer the supplemental petition, ordered that his answer to the original petition be refiled as an answer to the supplemental petition, to all of which the defendant objected and excepted. Upon the trial to the court which immediately followed there was judgment to the effect that neither party was entitled to the office of sheriff, and the same was declared vacant, whereupon both parties instituted separate proceedings in error for the purpose of reviewing the action of the trial court.
¶3 In view of the conclusion reached by the court, the foregoing statement is sufficient to present all questions necessary for a review. The plaintiff in error contends: (1) That the petition was prematurely filed; (2) that, inasmuch as no cause of action existed in favor of the plaintiff, and no relief could be granted on the facts stated in the original petition, the subsequently occurring facts could not have been material to the plaintiff's case, and therefore it was error to permit him to file a supplemental petition setting up such additional facts to enable him to maintain his action. We are of the opinion that both these contentions are well founded. In a very early case, R. v. Whitewell, 5 T. R. 85, Mr. Justice Buller said:
"No instance has been produced where the court has granted an information in nature of quo warranto, where the party against whom it was applied for has not been in actual possession of the office."
¶4 The same may be said today. From that time to this an unbroken line of authorities, both in England and this country, are to the same effect.
¶5 The prevailing modern rule is stated in 17 A. & E. Enc. Pl. & Pr. 407, where the authorities are collected, as follows:
"Quo warranto, or a proceeding in the nature thereof, lies only against one who is in the possession and user of the office, and not against one who merely lays claim to the office, or who has never been admitted thereto."
¶6 This proposition, however, is not seriously disputed by counsel for the plaintiff, but they take their stand more firmly upon the second, and insist that, if the original petition was immaturely filed, then that matter was cured by the filing of the defendant's supplemental petition, which, they say, was pursuant to section 4795, Rev. Laws 1910, which provides:
"Either party may be allowed, on notice, and on such terms, as to costs, as the court may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply."
¶7 In support of this position they cite several Kansas and one Iowa case, which states, it seems, have similar statutes. Williams v. Moorehead et al., 33 Kan. 609, 7 P. 226, Simpson v. Bose, 31 Kan. 227, Flint v. Dulany, 37 Kan. 332, 15 P. 208; Gribben v. Clement, 141 Iowa 144 119 N.W. 596, 133 Am. St. Rep. 157. We have examined these cases, and are of the opinion that in the Kansas cases cited the statute is properly construed and applied, but we do not believe the cases are in point. There seems to be some confusion in the Iowa cases touching the question. If the case from that state cited by counsel for the defendant can be said to be an authority supporting his contention, it is difficult to reconcile it with Dennison v. Soper et al., 33 Iowa 183, and Zalesky v. Home Ins. Co., 102 Iowa 613, 71 N.W. 566, which seem to support a contrary view.
¶8 Undoubtedly, the general rule governing the right to file supplemental pleadings is as follows:
"If, on the facts stated in the complaint, no cause of action exists against the defendant, and no relief can be granted against him on those facts, subsequently occurring facts cannot be made a part of the plaintiff's case, and he will not be permitted to file a supplemental petition alleging such additional facts to enable him to maintain the action which he has instituted, as the office of a supplemental complaint is not to supply facts which, being necessary to the maintenance of the action, have been omitted from the original complaint, but is to bring into the record new facts which will enlarge or change the kind of relief to which the plaintiff is entitled, and enable the court to render a final judgment upon the facts existing at the time of its rendition."
¶9 This text, which is taken from 21 Enc. Pl. & Pr. 18, is supported by a great array of authorities, among which we find the case of Rogers v. Hodgson, 46 Kan. 276, 26 P. 732. This was an action to recover upon a promissory note and to foreclose a mortgage which was given to secure the same. By a supplemental petition the plaintiff undertook to allege such defaults as would entitle him to recover 12 per cent. interest from the date of the mortgage, instead of the 7 per cent. rate stipulated therein, which the the trial court refused to permit him to file. This ruling was not disturbed on appeal; the Supreme Court holding that the record did not disclose any abuse of discretion on the part of the trial court. Mr. Justice Johnson, who delivered the opinion for the court, stated, however, that the trial court would have been warranted in allowing the supplemental petition to be filed, alleging additional defaults which would have entitled the plaintiff to recover a greater amount, but he also further says that:
"If there had been no default before the commencement of the action, the plaintiff would hardly be entitled to enlarge his action by a supplemental petition setting forth subsequent defaults or grounds of forfeiture which did not exist at the commencement of the suit."
¶10 The quoted portion of the opinion supports the text. This was the prevailing rule in Kansas for a long time prior to the time we adopted our statute governing supplemental pleadings from that state. In another somewhat analogous Kansas case, Brown v. Galena M. & S. Co., 32 Kan. 528, 4 P. 1013, it was held:
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...trial will not be granted. Section 6005, Rev. Laws 1910; Muskogee Electric Traction Co. v. Cox, 49 Okla. 365, 153 P. 125; Reader v. Farriss, 49 Okla. 459, 153 P. 678. ¶9 The second contention of plaintiff is that the court erred in permitting the defendant to open and close the case over pl......
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