Willis v. Cochran

• Decision Date: 02 October 1917
• Docket Number: 7042.
• Citation: Willis v. Cochran, 66 Okla. 257, 168 P. 658, 1917 OK 462 (Okla. 1917)
• Parties: WILLIS et al. v. COCHRAN et al.
• Court: Oklahoma Supreme Court

168 P. 658

66 Okla. 257, 1917 OK 462

WILLIS et al. v. COCHRAN et al.

No. 7042.

Supreme Court of Oklahoma

October 2, 1917

Rehearing Denied Nov. 13, 1917.

Syllabus by the Court.

The plaintiff, under the provisions of section 4787,Rev. Laws 1910, may amend his petition, at any time before answer is filed, and by such amendment may increase his demand for relief and may join with him as coplaintiff another party who has an interest in the subject-matter of the action, whether such interest be acquired before or after the filing of the original petition.

Such right to amend is absolute and it is reversible error for the trial court to strike such amended petition from the files.

Commissioners' Opinion, Division No. 1.Error from District Court, Carter County; A. Eddleman, Judge.

Action by Dixon Willis and H. C. Morris against B. F. Cochran and others.Judgment for defendants, and plaintiffs bring error.Reversed and remanded, with directions.

E. C Armstrong and J. Randall Connell, both of Idabel, for plaintiffs in error.

Wm Pfeiffer, of Oklahoma City, for defendants in error.

RUMMONS C.

The parties will be hereinafter designated as they appeared in the court below.The plaintiff, Dixon Willis on February 2 1914, filed his petition in ejectment against the defendants in the district court of Carter county, seeking to recover an undivided one-half interest in certain real estate in said county and to recover mesne profits.On February 27, 1914 and before answer was filed, plaintiffs, Dixon Willis and H. C. Morris, filed their amended petition against the defendants to recover the whole of said lands and mesne profits alleging that the plaintiffH. C. Morris was the owner thereof, and that the plaintiffDixon Willis is as plaintiff backing his warranty of title and suing for the use and benefit of said H. C. Morris.The defendants appeared and moved the court to strike said amended petition for the reason that the same sets up a new cause of action, in that the original petition prayed only for an undivided one-half interest in the lands and the amended petition adds a coplaintiff and prays for the recovery of the entire interest in the lands, and for the further reason that the interest of the coplaintiff H. C. Morris was acquired subsequent to the institution of the suit.This motion was sustained by the court, allowing plaintiffs an exception.Thereafter the defendants demurred to the original petition, which demurrer was sustained by the court, the court allowing plaintiff an exception.The plaintiffs duly perfected a case-made, and bring this proceeding in error to reverse the action of the trial court.

Section 4787, R. L. 1910, provides as follows:

"The plaintiff may amend his petition without leave, at any time before the answer is filed, without prejudice to the proceedings; but notice of such amendment shall be served upon the defendant or his attorney, and the defendant shall have the same time to answer or demur thereto as to the original petition."

In the case of Heil v. Heil,40 Kan. 69, 19 P. 340, it is said:

"The claim of error on the motion to set aside the service on John P. Heil is predicated upon the assumption that without service on John

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