Talbott v. Garretson

• Decision Date: 31 July 1897
• Parties: TALBOTT v. GARRETSON et al.
• Court: Oregon Supreme Court

49 P. 978

31 Or. 256

TALBOTT v. GARRETSON et al.

Supreme Court of Oregon

July 31, 1897

Appeal from circuit court, Umatilla county; Stephen A. Lowell Judge.

Suit by H.C. Talbott against W.C. Garretson and others. Decree for plaintiff. Defendants appeal. Reversed.

This case was commenced on August 27, 1896, to enjoin the sale of certain land belonging to the plaintiff under an execution issued on a judgment against his grantor, J.L. Craft, and in favor of defendants Garretson, Woodruff, Pratt & Co., for the sum of $4,000, rendered on April 1, 1896, on the ground that the judgment was entered without jurisdiction, and is absolutely void. The original complaint alleged title in plaintiff, the issuance of the execution on defendants' judgment, the levy thereof and the advertisement of the land for sale, the invalidity of the judgment, and prays for an injunction. After the issues had been made up, but before the trial, the plaintiff, by leave of the court, filed an amended complaint which contained substantially the same averments as the original, and, in addition, alleged that at the time the plaintiff purchased the land in question his father was the owner of two certain mortgages thereon, which were prior in time and superior in right to the lien of defendants' judgment, and which were duly assigned and transferred to him, and subsequently canceled and released; that such releases were made and executed by mistake, and were not intended to release or cancel the lien of the mortgage upon the premises, but for the sole and only purpose of conveying and giving to the plaintiff the right, interest, and title of his father therein. The complaint, as amended, prayed for a decree enjoining the threatened sale under execution, as in the original complaint, but, if that could not be done, that the mortgages be restored and the cancellation thereof annulled. The defendants moved to strike the amended complaint from the files on the ground that it set up a new and distinct cause of suit from that alleged in the original complaint, and, this motion being overruled, they moved to strike out all the allegations thereof in reference to the mortgages and their cancellation, on the ground that the facts thus stated were immaterial, and constituted no part of a cause of suit against the defendants. This motion was likewise overruled, and, upon issues being subsequently joined by answer and reply, the case was tried, and a decree rendered in favor of plaintiff, restoring the mortgages as liens upon the premises in question superior in right to the lien of the defendants' judgment, and from this decree defendants appeal.

J.J Balleray, for appellants.

A.D Stillman, for respondent.

BEAN, J. (after stating the facts).

The defendants contend, at the outset, that the court had no right, as a matter of law, to allow the amended complaint to be filed, because it purposed to add a new and distinct cause of suit not embraced in the original complaint. The statute (Code, § 101) provides that: "The court may, at any time before trial, in the furtherance of justice, and upon such terms as may be proper, allow any pleading or proceeding to be amended by adding the name of a party, or other allegation material to the cause, and, in like manner and for like reasons, it may, at any time before the cause is submitted allow such pleading or proceeding to be amended by striking out the name of any party or by correcting a mistake in the name of a party or a mistake in any other respect or when the amendment does not substantially change the cause of action or defense by conforming the pleading or proceeding to the facts proved." The construction of this section has been much discussed, and, while it must be regarded as settled that a new cause of action cannot be inserted by way of amendment on the trial ( Foste v. Insurance Co., 26 Or. 449, 38 P. 617), the question as to whether it may be done before trial has never been decided here, and the decisions elsewhere are conflicting. By one class of cases--of which Board of Sup'rs v. Decker, 34 Wis. 378, is an example--it is held that a party cannot under the form of an amendment before trial, change the scope of his action, or insert a new cause of action. But it is believed that this view is not in harmony with the great weight of authority, or the reason and spirit of the statute. In New York, under a statute practically the same as ours the courts, after apparent vacillation, finally established the rule that an amendment before trial, setting up a new cause of action or suit, is permissible if in furtherance of justice, but that the power to grant amendments upon the trial is restricted to such amendments as do not change substantially the cause of action or defense. 1 Rum.Prac. 284; Brown v. Leigh, 49 N.Y. 78; Hatch v. Bank, 78 N.Y. 487; Freeman v. Grant, 132 N.Y. 22, 30 N.E. 247. In Brown v. Leigh, supra, the original complaint was to compel the determination of conflicting claims to real property, but under a statute providing that any pleading may be once amended by the party of course without prejudice to proceedings already had the plaintiff served an amended complaint which set forth a cause of action in ejectment. This was stricken out on motion upon the ground that it embraced new and different cause of action from that set forth in the original complaint. From this order an appeal was taken, and Mr. Justice Grover, after referring to the fact that some of the courts of the state had held that the statute only gave the right to amend and perfect what was previously set out in an imperfect manner, and that others had held that a new cause or action or defense might be set up, says: "I think the construction adopted in the former cases too strict, and subversive of the true meaning of the section in this respect. That gives a party power to amend any pleading once without imposing any restriction upon it. The term 'pleading' includes all the pleadings of both parties. The 'complaint' is the statement of the plaintiff's cause or causes of action. It is this statement or complaint that may be amended and perfected by the party so as to enable him to present his entire case upon trial. It is not confined to an amendment of such matter as has been defectively stated in the original complaint. The same remarks apply to the answer. This is a statement of the defense and of any counterclaim or claims. It is this statement that may be amended by the party so as to enable him to avail himself of all his defenses upon trial. It follows that new causes of action may be included in the complaint, and those in the original left out, and new defenses or counterclaims embraced in the answer. That this was the intention of the legislature...