Sheimo v. Norqual
| Decision Date | 14 June 1915 |
| Citation | 153 N.W. 470,31 N.D. 343 |
| Court | North Dakota Supreme Court |
Rehearing denied July 2, 1915.
Appeal from the County Court of Benson County, Liles, J.
Affirmed.
J. E Skulstad, for appellant.
The amended pleadings in a cause, being complete, supersede the original pleadings. By them the issues for trial are presented. First M. E. Church v. Fadden, 8 N.D. 164 77 N.W. 615.
The service of amended pleadings as of course destroys the issues raised by the original pleadings. 31 Cyc. 366, f. and cases cited.
When a new answer is filed, the former answer is withdrawn, and ceases to be a part of the record. This is true of any pleading. Rev. Codes 1905, § 6682, Comp. Laws 1913, § 7269; Wells v. Applegate, 12 Ore. 208, 6 P. 770; Hexter v. Schneider, 14 Ore. 184, 12 P. 668; La Societe Francaise De Bienfaisance Mutuelle v. Weidmann, 97 Cal. 507, 32 P. 583; Schneider v. Brown, 85 Cal. 205, 24 P. 715; Mott v. Mott, 82 Cal. 413, 22 P. 1140; First Nat. Bank v. Laughlin, 4 N.D. 391, 61 N.W. 473.
The court erred in admitting evidence over plaintiff's objection, tending to show usury, because such issue was not presented in the amended answer. Usury must be pleaded. Waldner v. Bowden State Bank, 13 N.D. 609, 102 N.W. 169, 3 Ann. Cas. 847; Yankton Bldg. & L. Asso. v. Dowling, 10 S.D. 540, 74 N.W. 438; Morford v. Davis, 28 N.Y. 481; Manning v. Tyler, 21 N.Y. 568; Gould v. Horner, 12 Barb. 603; Bowman v. Eppinger, 1 N.D. 21, 44 N.W. 1000; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N.D. 410, 61 N.W. 145; 28 Cyc. 1565, and cases cited.
Plaintiff's request of the court, to instruct the jury to disregard any evidence tending to show usury, was proper, and should have been granted. It is for the court to say what is legal evidence. Minnesota Thresher Mfg. Co. v. Lincoln, 4 N.D. 410, 61 N.W. 145; Bliss, Code Pl. P 121; Jasper v. Hazen, 2 N.D. 401, 51 N.W. 583; First Nat. Bank v. Laughlin, 4 N.D. 391, 61 N.W. 473; Hannas v. Hawk, 24 N.J.Eq. 126; Lane v. Losee, 2 Barb. 58; Taylor v. Morris, 22 N.J.Eq. 611; Bowman v. Eppinger, 1 N.D. 21, 44 N.W. 1000.
The amended answer was of no avail as to the question of usury. The further amendment raised a new defense, and new issues, and should not have been allowed. Rev. Codes 1905, § 6883, Comp. Laws 1913, § 7482; Barker v. More Bros. 18 N.D. 82, 118 N.W. 823; Barnes v. Berendes, 139 Cal. 32, 69 P. 491, 72 P. 406; Ramirz v. Murray, 5 Cal. 222; Lane v. Beam, 19 Barb. 51, 1 Abb. Pr. 65.
T. H. Burke and E. J. McIlraith, for respondents.
Where plaintiff's pleading shows on its face that the claim or contract is usurious, usury is available as a defense, although not pleaded. 39 Cyc. 1040, and authorities cited.
Under the general issue, or general denial, any evidence is admissible which contradicts, or directly tends to contradict, the allegations of the complaint, which plaintiff must prove, to sustain his case. 31 Cyc. 687, and authorities cited; 39 Cyc. 1056, and authorities cited.
The plaintiff has waived or lost his right to object to the defendant's amended pleading, because no timely objection was made, and because he has not shown that he was prejudiced. Wolfinger v. Thomas, 22 S.D. 57, 133 Am. St. Rep. 900, 115 N.W. 101; North Star Boot & Shoe Co. v. Stebbins, 3 S.D. 540, 54 N.W. 593.
An objection on the ground of variance is unavailing, unless the variance is of such a degree as to be a failure of proof. Halloran v. Holmes, 13 N.D. 411, 101 N.W. 310; Meldrum v. Kenefick, 15 S.D. 370, 89 N.W. 863.
The power of amendment may be exercised, in a proper case, to the extent of changing entirely the cause of action, so long as the real controversy between the parties is not fully departed from. Hopf v. United States Baking Co. 21 N.Y.S. 589; Wolfinger v. Thomas, 22 S.D. 57, 133 Am. St. Rep. 900, 115 N.W. 101.
Defendant cannot justly claim prejudice, after the liberal action of the court in permitting the case to be reopened for further evidence, if prejudice was claimed. Maloney v. Geiser Mfg. Co. 17 N.D. 195, 115 N.W. 669.
The plaintiff served his complaint in county court, alleging that the defendants executed and delivered to him their promissory note in the sum of $ 110, with interest at the rate of 12 per cent after date. For answer, defendants admit the execution and delivery of their note for $ 110; but allege that the note was given to secure the sum of $ 100 borrowed by defendant, and the charging of interest on the said sum of $ 110 is usurious, and that the said charging of the said rate of interest on said note was knowingly done by plaintiff. Defendants admit that they are indebted to plaintiff in the sum of $ 92. After the service of this answer an amended complaint was served, wherein it was alleged that it was the intention of the parties to said note that the note should be for $ 100, but by mutual error it read $ 110, instead of $ 100. The defendants thereupon filed an amended answer to said amended complaint, which was in effect a general denial. When the case was reached for trial, no objection of any kind was made to the condition of the pleadings, and plaintiff was called as a witness to substantiate his theory of the execution of the note. Upon cross-examination, and in refutation of his theory thereof, some reference was made to a bonus. Plaintiff's counsel took exception to this, claiming that usury was not pleaded as a defense. The court thereupon called his attention to P 4 of the original answer, and informed counsel that the case would be tried upon that pleading, as supplemented by the amended answer. At the close of all of the testimony, plaintiff moved for a directed verdict, upon the ground that the only defense interposed, that of usury, was not pleaded in the amended answer. The court stated that he was not prepared to rule at that time, and an adjournment was taken until the next morning. Upon convening, defendants' attorney stated that he still believed the original answer stood, but, if the court ruled otherwise, he would move for leave to file an amended answer; this was allowed, and both the original answer and the amended answer were consolidated into one pleading, whereupon the court denied the motion for a directed verdict. Thereupon plaintiff's attorney moved the court for a certain time within which to reply if a reply in his judgment should be made, or to file a demurrer. Whereupon the following proceedings were had:
The Court: You can ask the court to have the case reopened. How long would it take you to determine?
Mr. Skulstad: If it please the court, I want to demur to this answer.
The Court: What is going to be the ground of your demurrer? You know the statutory grounds for demurrer. Which are you going to urge?
Mr. Skulstad: For the reason that the same fails to set out an action or a defense to the complaint herein.
The Court: You may prepare your demurrer, and the demurrer will be denied. You can file it and put it in the record, and I will deny it without argument. You may prepare the demurrer subsequently, and file it so as to complete the record.
The case was submitted to the jury, who found for the defendant. Plaintiff appeals, alleging two groups of errors:
(1) Appellant alleges that "the court erred in holding evidently, that the original pleadings were in effect at the trial." As will be gathered from the foregoing statement of facts, the original complaint was upon a promissory note for the sum of $ 110. This was answered with the plea of usury. Thereupon the plaintiff filed an amended complaint, claiming the note was for $ 100; but by mistake it had been written $ 110; and to this an amended answer was interposed, in the nature of a general denial. It was evidently the intention of the defendants that this amended answer should go merely to the new portions of the complaint; that is, it denied that the note was taken by mistake for...
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