OPINION
PER CURIAM:
This
is the second appeal of this case. The opinion in the former
appeal is reported in 211 Iowa 224, and the facts as they
appeared at said time are set forth in said opinion.
Briefly stated, Cordaro was the defendant in a criminal case.
He was convicted and appealed to this court. Appellee Smith
was surety on the appeal bond. The State brought suit on said
bond. Smith impleaded appellant Lynch by cross-petition, and
alleged:
"*
* * 3. That to induce this defendant to sign said bond, said
defendant Vernon W. Lynch orally stated, represented, and
promised to this defendant that he, the said Lynch, had
collected from said defendant Joe Cordaro ample funds and
security to pay said fine ($ 1000) imposed by the district
court of Polk County, Iowa, and all costs that might be taxed
against said Cordaro in the event of an affirmance of his
said conviction by the Supreme Court of the State of Iowa;
that this defendant need never worry about paying said bond;
that he, the said Vernon W. Lynch, would see to it that said
bond would be paid, and that this defendant would be
indemnified and saved harmless. That this defendant, in
consideration of, and relying upon said inducements,
statements, representations, promises, and agreements of the
said defendant Vernon W. Lynch, and at the special instance
and request of said Lynch, thereupon signed said bond as
surety for said defendant Joe Cordaro.
"4.
That this defendant, except for the inducements, promises,
and representations of said defendant Vernon W. Lynch, would
not have signed said bond as aforesaid. * * *"
Upon
remand to the district court, and on the eve of the trial,
the appellee amended his petition as follows:
"Comes
now Wilbert J. Smith, defendant and cross-petitioner in the
above entitled cause, and amends his cross-petition by
striking from line 4, paragraph 3, thereof, the words
'said defendant Joe Cordaro', and substituting
therefor, the words 'the Cordaro family'; and by
striking from the first sentence the last clause thereof,
reading, 'and that this defendant would be indemnified
and saved harmless', and substituting therefor the words
'and that he would pay it'; and by transposing said
allegation as to indemnification; so that
said paragraph 3 as amended will read as follows:
"3.
That to induce this defendant to sign said bond said
Defendant Vernon W. Lynch
orally stated, represented and promised to this defendant
that he, the said Lynch, had collected from the Cordaro
family ample funds and security to pay said fine imposed by
the District Court of Polk County, Iowa, and all costs that
might be taxed against said Cordaro in the event of an
affirmance of his said conviction by the Supreme Court of the
State of Iowa; that this defendant need never worry about
paying said bond; that he, said Vernon W. Lynch, would see to
it that said bond would be paid, and that he would pay it.
That in consideration of, and relying upon said inducements,
statements, representations, promises and agreements of said
Defendant Vernon W. Lynch, and believing that he, the
defendant, would be indemnified against liability, this
defendant, at the special instance and request of said Lynch,
thereupon signed said bond as surety for said Defendant Joe
Cordaro."
Appellant
moved to strike this amendment upon the following grounds:
"1.
That said amendment to cross-petition changes said
cross-petition from an action on an oral promise of an agent
to answer for the debt, default or miscarriage of his
principal out of funds of the principal, to an action wherein
cross-defendant is alleged to be and made principal, and is
alleged to be making an oral original promise to answer on
his own account for the debt, default or miscarriage of a
third party. And the cross-defendant respectfully shows the
court that before either of the first two trials of this case
in the District Court and before the trial of this case in
the Supreme Court cross-defendant filed a motion for more
specific statement, which was resisted by cross-petitioner
and eventually overruled, and cross-defendant by reference
makes his original motion for more specific statement a part
of this motion to strike. Cross-defendant shows the Court
that an attempt was made to make the petition more specific
before any trial of this case and that said amendment so
substantially changes the cause of action as to make it in
fact not the same cause of action which has been tried twice
in the District Court and in the Supreme Court. That
cross-petitioner had a full knowledge of the facts during the
first and second trials of this case in the
District Court, and he assumed a particular position and
adopted a certain cause of action, and he is now estopped to
assume the inconsistent position of entirely changing his
cause of action and in substance trying a new case against
cross-defendant to cross-defendant's prejudice.
"2.
In the alternative, and if Ground 1 of the motion to strike
Cross-petitioner's Amendment is overruled, then and in
that event the case becomes one of an original independent
promise and not that of an agent, and cross-defendant moves
the Court to strike from paragraph 3 of the cross-petition as
amended all reference to the collection of funds or
securities from Joe Cordaro or the Cordaro family, for the
reason that the same is an attempted pleading of evidence and
immaterial to the cross-petitioner's action upon an
original promise, and immaterial and incompetent to the
issues remaining in the cross-petition, and partakes of
irrelevant matter against the doctrine of res inter alios
acta."
The
court overruled said motion to strike said amendment.
Code
Section 11182 is as follows:
"The court may, on motion of either party at any time,
in furtherance of justice and on such terms as may be proper,
permit such party to amend any pleadings or proceedings by
adding or striking out the name of a party, or by correcting
a mistake in the name of a party, or a mistake in any other
respect, or by inserting other allegations material to the
case, or, when the amendment does not change substantially
the claim or defense, by conforming the pleading or
proceedings to the facts proved."
It is a
well-established rule that trial courts are liberal in the
allowance of amendments to pleadings and that we hesitate to
interfere with the action of the trial court in allowing or
denying amendments. But, notwithstanding these recognized
rules, it is a fact that we not only have the power to review
the action of the trial court in ruling on amendments, but it
is our duty so to do when substantial legal rights are
involved.
The
appellee's cause of action as originally pleaded in his
cross-petition was discussed in our opinion on the former
appeal. In said cross-petition it clearly appeared that
appellee's cause of action was predicated on the claim
that he was induced to sign the Cordaro
appeal bond by the oral representations of appellant Lynch
that he had collected from said defendant Joe Cordaro ample
funds and security to pay the fine imposed upon Cordaro, and
that he, Lynch, would see to it that said bond would be paid,
and that Smith would be indemnified and saved harmless.
After
remand the amendment set out supra was filed. Did it change
the issues?
As set
forth in our former opinion, the allegation that appellant
had collected ample funds and security from Joe Cordaro (the
defendant in the criminal action) was a material allegation
of appellee's cross-petition. It became especially
material in view of the evidence upon that trial with regard
to the ownership of and the purpose for which certain funds
were claimed to have been placed in appellant's hands. We
reversed because of the admission of such evidence. One
evident purpose of the amendment was to avoid the effect of
our former decision, and in so doing the appellee presented
an entirely new issue.
The appellee originally claimed that appellant represented to
appellee that he had collected...