State ex rel. Barnard-Curtiss Co. v. District Court of Third Judicial Dist. in and for Granite County

• Decision Date: 21 February 1942
• Docket Number: 8255.
• Citation: 122 P.2d 419,113 Mont. 107
• Parties: STATE ex rel. BARNARD-CURTISS CO. v. DISTRICT COURT OF THIRD JUDICIAL DIST. IN AND FOR GRANITE COUNTY et al.
• Court: Montana Supreme Court

122 P.2d 419

113 Mont. 107

STATE ex rel. BARNARD-CURTISS CO. v. DISTRICT COURT OF THIRD JUDICIAL DIST. IN AND FOR GRANITE COUNTY et al.

No. 8255.

Supreme Court of Montana

February 21, 1942

Original application for writ of supervisory control by the State of Montana, on the relation of Barnard-Curtiss Company, a corporation, against the District Court of the Third Judicial District of the State of Montana in and for the County of Granite and the Honorable R. E. McHugh, Judge thereof.

Peremptory writ issued.

Ralph J. Anderson, of Helena, and Toole & Boone, of Missoula, for relator.

Harlow Pease and R. Lewis Brown, both of Butte, for respondents.

ANDERSON Justice.

The relator, Barnard-Curtiss Company, a Minnesota corporation, is defendant in an action pending in the district court of Granite county, brought by C. A. Metcalf, to recover an amount which he claims as owing to him for work done on a dam construction project. Barnard-Curtiss Company had the contract for building the dam and Metcalf had been employed and had done work in clearing the reservoir site of timber and brush. Ernest Maehl had likewise been employed in the same work; both had received pay from Barnard-Curtiss as the work progressed. Each made demand on Barnard-Curtiss for a sum claimed as a balance owing. Each brought separate suit against Barnard-Curtiss for the amount claimed, the basis of each suit being the clearing of the reservoir site, each claiming to have been hired or to have had a contract to do the work.

The amount sued for in each case was about the same, something over $3,000. Both cases were removed to the federal district court on the ground of diversity of citizenship. Metcalf dismissed his case and brought two new actions in the state court covering the same demand as was all first included in one action, each less than $3,000, thus avoiding removal to the federal court. In the case here involved the amount sued for is $2,990.

The Maehl case was tried in the federal district court resulting in a verdict and judgment for the plaintiff. On appeal to the circuit court of appeals the judgment was affirmed. Barnard-Curtiss Co. v. Maehl, 9 Cir., 117 F.2d 7. Shortly after its affirmance relator paid the judgment.

The Metcalf case, in relation to which the present proceeding has been instituted, was carried along and held in abeyance during the time of the disposition of the Maehl case.

In the Maehl case an attempt was made by the defendant Barnard-Curtiss Company to make Metcalf a party to the action, but this the court did not allow. In the trial of that case Metcalf was called as a witness by the defendant. From his testimony it appeared that he and Maehl had been dealing together for the job of clearing the dam site and reservoir site and that they had both worked on the job.

The relator's answer filed in the Metcalf case shortly after its commencement was a general denial, and it also alleged that the work done by Metcalf was not as contractor but as employee of the relator and for which he had been paid in full. After paying the judgment in the Maehl case the relator applied to the court for leave to amend its answer in the Metcalf case so as to set up the Maehl judgment and its payment as a defense. In the proposed amended answer, and a supplemental answer, a partnership between the two claimants is alleged and the pleas of payment, res adjudicata and estoppel are set up, based on the Maehl judgment and the payment of that judgment, and Metcalf's testimony in the trial of the Maehl case. The court refused leave to make the amendment.

In the proceeding here the relator complains that it has been deprived of the right and opportunity to interpose a good defense; that the refusal of leave to amend was without justification and arbitrary; that there is no adequate relief by appeal nor by any other ordinary process, and relator seeks relief from this court by exercise of the power of supervisory control.

Upon relator's petition an order to show cause was issued. In response thereto the district court has made its return setting up as reasons for refusing the leave applied for that the relator had had ample opportunity to present its defense that its application to amend its answer was not timely made that the entire affirmative matter contained in the proposed answers is insufficient in law as a defense and incompatible with sworn statements theretofore made in the case by the defendant, that the application was not made in good faith that granting the leave to amend would be prejudicial to plaintiff, and would not be in furtherance of justice but in contravention thereof, and that it would encourage the production of false evidence by the relator.

Amendments of pleadings after issue joined are, by statute, left to the discretion of the trial court. Sec. 9187, Rev. Codes. Liberality in allowing amendments is the rule, it being generally stated that, while an application to amend is addressed to the sound, legal discretion of the trial court, the rule is to allow, and the exception to deny, amendments. State ex rel. Gold Creek Mining Co. v. District Court, 99 Mont. 33, 43 P.2d 249. A simple direct statement of the rule is that, while it is in the discretion of the trial court whether an amendment may be made, the amendment should be allowed unless there is good reason for its refusal.

The liberal policy is general under the Codes as is pointed out in Bancroft's Code Pleading, page 736, section 511, where it is said that: "The Codes and the courts alike favor a broad liberality, rather than severely technical tendencies on this subject. Hence it is a rule generally that, in furtherance of justice, amendments to pleadings should be liberally allowed; and courts should be especially liberal toward defendants in allowing amendments."

In considering whether the amendments here sought should have been allowed, the liberal rule must be applied as the law, and the question then is whether the trial court, in refusing to allow the amendments, kept within that rule.

As appears to us, the only ground of refusal that needs to be specially considered is whether the application to amend and file supplemental answer was timely made. Defendant's answer was filed on November 18, 1939, after the judgment in the Maehl case. Respondents say that all of the facts which furnish the basis for the allegation of the partnership relation then already had happened, but nevertheless no point was made thereof in the answer then filed. Also, that relator took no steps toward interpleader or other proceeding to bring the cases together. That not until February, 1941 after the case was set for trial, did the relator make any point of the matter now sought to be pleaded as an additional defense. The general complaint is that the relator did...