Weeks v. Bailey, 3457.

• Citation: 300 P. 358,35 N.M. 417
• Decision Date: 01 June 1931
• Docket Number: No. 3457.,3457.
• Parties: WEEKSv.BAILEY et al.
• Court: New Mexico Supreme Court

35 N.M. 417

300 P. 358

WEEKS

v.BAILEY et al.

No. 3457.

Supreme Court of New Mexico.

June 1, 1931.

Syllabus by the Court.

Supplemental complaint which merely claimed damages in addition to those claimed originally held not to operate as abandonment of original complaint.

A supplemental complaint which does not purport to abandon an original complaint, but on the other hand purports to sue for damages in addition to those sued for in the original complaint, does not operate as an abandonment of the original complaint.

Appeal from District Court, Dona Ana County; Dunifon, Judge.

Action by W. R. Weeks against Blanche B. Bailey and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

A supplemental complaint which does not purport to abandon an original complaint, but on the other hand purports to sue for damages in addition to those sued for in the original complaint, does not operate as an abandonment of the original complaint.

R. J. Channell, of El Paso, Tex., and M. A. Threet, of Las Cruces, for appellants.

Knollenberg & Cameron, of El Paso, Tex., for appellee.

PARKER, J.

This is the second appeal, the first being reported as Weeks v. Bailey, 33 N. M. 193, 263 P. 29. The judgment now appealed from is in accordance with the mandate of this court, except that the damages are now larger. Appellee failed to file the remittitur, as he was permitted to do by the former decision of this court as a condition to the affirmance of his judgment. The cause was accordingly reinstated on the docket for a new trial.

With the leave of the court, appellee filed a so-called supplemental complaint alleging merely that, since the suit had been instituted, appellant had used and enjoyed the premises, and that further damages by way of rents and profits had accrued, for which he prayed judgment, in addition to the relief prayed for in the original complaint. Appellant did not, by motion or otherwise, raise any question as to this procedure, but simply answered with a general denial. The cause came on for trial, and, upon appellee tendering evidence, appellant objected to it and to any evidence, for the reason “that the supplemental complaint filed March 30, 1929, supplanted the original complaint filed in the cause, and that the allegations contained in the original complaint and not carried forward in the supplemental complaint were abandoned.” The objection was sustained.

Appellee then obtained leave of the court to file an amended supplemental complaint, in which he set forth his original cause of action in ejectment and prayed both for possession of the land and for judgment for the rents and profits, thus complying with the requirement of 1929 Comp. § 105-614, that an amendatory or supplemental complaint must set forth in one entire pleading all matters necessary to the proper determination of the action. Appellant moved to strike certain paragraphs of this amended supplemental complaint, which, if stricken, would have left the pleadings substantially as they were when appellants' objections to the receipt of any evidence were sustained. The ground of the motion was that the “first amended complaint seeks to inject into the case a suit in ejectment, which is an entire new cause of action and foreign to the issues raised by the supplemental...