Wynnewood Cotton Oil Co. v. Moore

• Decision Date: 27 July 1915
• Docket Number: Case Number: 4973
• Parties: WYNNEWOOD COTTON OIL CO. v. MOORE.
• Court: Oklahoma Supreme Court

1915 OK 571

153 P. 633

54 Okla. 163

WYNNEWOOD COTTON OIL CO. v. MOORE.

Case Number: 4973

Supreme Court of Oklahoma

Decided: July 27, 1915

Syllabus

¶0 1. PLEADING--Supplemental Petition--Allowance. In the month of November, 1904, an action was commenced in the United States District Court for the Indian Territory to recover damages in the sum of $ 1,500 for a breach of contract under which the defendant agreed to furnish the plaintiff feed for certain cattle. On assumption of statehood the case was transferred to the district court of the state, and in January, 1908, the plaintiff filed, in the same case, an amended and supplemental petition, alleging that after the commencement of the suit the parties submitted the matters in controversy to arbitration, and, after hearing the testimony, the arbitrators found that the defendant was indebted to the plaintiff in the sum of $ 969, and so returned their decision and award in writing, upon which the plaintiff prayed judgment for the amount of the award. Held, that the court did not commit error in overruling the defendant's motion to strike the amendment from the files.

2. PLEADING--Right to Amend. The statutes, and also the decisions of the courts of this state, are extremely liberal in permitting amendments to pleadings so long as such amendments are in furtherance of justice, and amendments which even change the cause of action may be permitted, provided they do not substantially change the plaintiff's claim.

Error from District Court, Garvin County; R. McMillan, Judge.

Action by W. R. Moore against the Wynnewood Cotton Oil Company. Judgment for plaintiff, and defendant brings error. Affirmed.

J. B. Thompson, for plaintiff in error.

Cruce, Cruce & Cruce and Blanton & Andrews, for defendant in error.

ROBBERTS, C.

¶1 This action was commenced in the United States court at Pauls Valley, Indian Territory, on the 16th day of November, 1904, and on assumption of statehood was transferred to the district court of Garvin county, State of Oklahoma. Plaintiff sought to recover damages in the sum of $ 1,500, occasioned by the breach of a contract under which the defendant agreed to furnish the plaintiff with feed for certain cattle.

¶2 On the 18th day of January, 1908, the plaintiff filed a supplemental complaint, in which he reincorporated the allegations of the original complaint, and alleged that after the institution of the suit the parties had submitted the matters in controversy to arbitration, and that the arbitrators had found that the defendant was indebted to the plaintiff in the sum of $ 969. The plaintiff therefore asked for judgment for the sum estimated by the award of the arbitrators.

¶3 On the 30th day of January, 1908, the defendant filed a motion to strike the supplemental complaint, upon the ground "that it set up a cause of action different from the one declared on in the original complaint." The motion was overruled, and the defendant answered, denying all the allegations of the complaint, as well as all the allegations of the supplemental complaint. Trial was had to the court, which resulted in a judgment for the plaintiff for the amount established by the award. From this judgment, defendant brings error. For convenience the parties herein will be designated plaintiff and defendant, the same as below. In his petition in error, counsel sets up some fourteen specifications of error, but in his brief groups them into four general assignments, as follows:

First: "The court erred in permitting the defendant [here and below by "plaintiff" and "defendant" are meant respectively "plaintiff in error" and "defendant in error"] to file an amended complaint which set up an entirely new cause of action accruing after the filing of the complaint setting forth the original cause of action, the cause of action declared upon in the amended complaint having no connection whatever with the cause of action declared upon originally, and depending upon an entirely different state of facts, the original cause being an action for damages for the alleged breach of a contract to furnish feed for cattle, and the amended cause being an action for a sum of money which defendant alleged was due him by reason of an award of the arbitrators to whom was submitted the controversy between plaintiff and defendant set forth in defendant's original complaint. And the court erred in refusing to strike said amended complaint from the files and in overruling plaintiff's demurrer thereto, and permitting defendant to introduce evidence in support thereof, and in rendering judgment thereon."

Second: "The decision of the court is not supported by the weight of the testimony, is contrary to the weight of the testimony, and the court erred in rendering judgment in favor of the defendant and against the plaintiff."

Third: "The court erred in rendering a decision herein in favor of the defendant and against the plaintiff, and fixing the interest at the rate of six per cent. per annum in the absence of all proof relative to interest."

Fourth: "The court erred in overruling plaintiff's motion for a new trial, to which action of the court plaintiff then and there excepted, and still excepts."

¶4 The general assignments will be taken up in the order in which they are charged in the brief.

¶5 In support of the first contention defendant insists that the court erred in permitting the plaintiff to amend his petition by alleging that after the institution of this suit the parties had by agreement submitted the matters in controversy to arbitration, and that the arbitrators, after hearing the evidence, had found that the defendant was indebted to the plaintiff in the sum of $ 969, and rendered and returned their award in writing to that effect, and upon which said award the plaintiff prayed judgment. In this same assignment counsel contends that the court erred in overruling his motion to strike the amended and supplemental petition from the files, for the reason that it states and seeks to recover on a new and different cause of action.

¶6 Some controversy arose between counsel as to whether this should be designated as an amended or a supplemental petition. As we look at it, this is a contention over an immaterial matter--a distinction without a difference. If there is a distinction, to our mind, upon a close technical ruling, we would be inclined to say that it is an amendment to the petition, for the reason that it is not a new cause of action as contemplated under the Code, prohibiting amendments which change or set up a new or different claim.

¶7 The original action was to recover upon a breach of contract for failure to furnish feed for cattle. After the arbitration and amendment to the petition the action was to recover upon the same claim. There was no change of claim or cause of action. At most, it was an allegation of facts material to the case, accruing after the filing of the first or former complaint. It is also immaterial whether the proceeding was taken under the Oklahoma or Arkansas Code of Civil Procedure, for the reason that they are practically the same.

¶8 Section 4795, Rev. Laws 1910, which was in force at the time of filing the amendment, is as follows:

"Either party may be allowed, on notice, and on such terms, as to costs, as the court may prescribe, to file a supplemental petition, answer, or reply, alleging facts material to the case, occurring after the former petition, answer, or reply."

¶9 And section 5084, Mansfield's Digest of the Laws of Arkansas, also in force in the Indian Territory prior to and at the time the case was commenced, is as follows:

"The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint, answer or reply, alleging facts material to the case occurring after the filing of the former complaint, answer or reply."

¶10 The Oklahoma statute, if there was any difference, should control, affecting, as it does, only the remedy. Our statute was taken from section 4227, Kansas Code, and, having the subject under consideration, the Supreme Court of Kansas, before the adoption of the Kansas Code of Civil Procedure by Oklahoma, in Austin v. Jones, 47 Kan. 565, 28 P. 621, uses the following language:

"Section 144 of the Civil Code (Gen. St. 1889, sec. 4227) provides as follows: 'Either party may be allowed, on notice, and on such terms as to costs as the court may prescribe, to file a supplemental petition, answer, or reply, alleging facts material to the case occurring after the former petition, answer, or reply.' This court has repeatedly and uniformly held that supplemental pleadings may be filed within the provisions of the foregoing section. Porter v. Wells, 6 Kan. 448; Clark v. Spencer, 14 Kan. 398 ; Simpson v. Voss, 31 Kan. 227, 1 P. 601; Williams v. Moorehead, 33 Kan. 609, 7 P. 226; Drielling v. Bank, 43 Kan. 197, 25 P. 94 . See especially the case of Williams v. Moorehead. It would seem that the principal objections urged against this supplemental petition are that the plaintiff asked leave to file it 'precisely four years after the commencement of the action,' and that it constituted a departure from his original case and an attempt to set forth a cause of action which he did not have at the beginning of the suit. We do not think that these objections are sufficient. As long as the suit continues undisposed of the parties have the right, under section 144 of the Civil Code, to file supplemental pleadings, provided, of course, that they can bring themselves within the provisions of such section, even if it should be four or more years after the commencement of the action before they ask to file their supplemental pleadings. Besides, the plaintiff in this case did not attempt by his supplemental petition to set up a new or independent cause of action, but simply attempted to set forth facts which took place subsequently to the commencement of his action, for the purpose of perfecting or making better his

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