Thomas v. Hawkins , 13 Ind. App. 318 ( 1895 )

Reinhard, C. J.

Hawkins was the United States Marshal for the District of Indiana under a former administration, and as such, together with his bondsmen and one Alfred Isaacs, an alleged deputy, was sued by Thomas on his official bond, to recover damages for the alleged unlawful arrest and imprisonment of said Thomas on the 6th day of November, 1888. The court overruled a demurrer to the complaint, and, after a jury trial, a verdict was returned and judgment rendered in favor of Hawkins. Thomas appealed to this court, where the judgment was reversed, the court holding that there was no liability on the bond, either as to Hawkins or his sureties. Hawkins v. Thomas, 3 Ind. App. 399. After the cause had been remanded to the lower court, the appellant dismissed his action as to all the defendants except- Hawkins, and as to him the court, in obedience to the mandate of this court, sustained the demurrer.

The appellant thereupon tendered his amended complaint in the cause, as against the appellee alone. The court refused to allow the appellant to file his amended complaint so tendered, and the appellant excepted. Judgment was then rendered against appellant for costs, and he appealed to this court.

According to the decision on the former appeal, the action as originally instituted was ex contractu in form, and would not lie. The appellant, by the amended complaint offered, attempted to change the form of the action to one ex delicto, against Hawkins alone. The appellant insists that the ruling of the court in refusing the appellant leave to file such amended complaint was reversible error.

It is provided by section 345, R. S. 1894 (R. S. 1881, section 342), that “if the court sustain or overrule a demurrer, the party affected by such ruling may plead over or amend upon such terms as the court may direct, and on payment of costs occasioned by the demurrer.”

Ordinarily the right to amend upon the sustaining of a demurrer to the complaint is absolute and cannot be denied the plaintiff by the court if he be willing to comply with the terms prescribed. In another section of the code it is provided that “any pleading may be amended by either party, of course, at any time, before the pleading is answered.” R. S. 1894, section 397 (R. S. 1881, section 394). We think, however, that the pleading over or the amendment, which is contemplated by the code, is not such as allows a departure from the original cause of action, as a matter of absolute right. This would not be an amendment, but the filing of a new cause of action.

True, our code is exceedingly liberal as to amendments. Upon its face it permits any and all kinds of amendments to the complaint without leave of court, if made-before answer. It also allows amendments as to parties plaintiff or defendant, and under the decisions a new plaintiff may be substituted as well as a new defendant. Fargo & Co. v. Cutshaw, 12 Ind. App. 392, and cases cited.

If it was contemplated by the statute to permit, as a matter of right, not only a change of parties, but also a change of the cause of action, then there is no reason why A may not initiate proceedings by suing B on a promissory note, and C conclude them by suing D for an assault and battery or other action in tort. We do not think it was ever intended that the right to amend should be carried to the extent of allowing a new and different cause of action to be substituted for the original one, as a matter of right, although there is no doubt that the mere form of the action maybe changed, and here is where we think much of the confusion and conflict arises in the decided cases.

aMr. Works, it seems to us, correctly states the rule when he says: ‘ ‘As to the plaintiff, no amendment should he permitted that would change the cause of action from the one named in the complaint. The injustice that might result from such an amendment is evident, as the defendant might he willing to suffer a default as to the cause of action named in the complaint, but not as to the one added by way of amendment.” Works Pr. and Pl., section 697.

We are not aware of any case in our own courts which holds in express terms that an amendment to a complaint which changes the cause of action from one in contract to one in tort, and vice versa, may be made as of right, even before answer. The code of 1843 expressly prohibited such an amendment. R. S. 1843, chap. 47, section 171. The case of Boyd v. Caldwell, 95 Ind. 392, only declares that it is not error to permit an amendment changing the nature of the action. That was originally a suit by the State on the relation of the beneficiary on the bond of a trustee under a will against both the principal and the sureties. Afterward the case was dismissed as to the sureties, and an amended complaint was filed against the trustee alone, in which the original relator was substituted as plaintiff for the State. The amended or new complaint was in the nature of a proceeding to set aside certain partial and final reports of the trustee as fraudulent, and praying judgment for §5,000 for the use of the trust estate on account of the alleged malfeasance of the trustee.

The point as to the right to amend received but little consideration at the hands of the court, the judgment being reversed upon another ground. All that was said upon the subject of the amendment was that the court Avas of opinion that under the liberal provisions of the statute respecting amendment, no error was committed in the ruling by which such amendment was alloAved. That it would have been error to reject the amendment, or that it Avas the plaintiff’s absolute right to make the same, was not decided.

We do not think the case cited is an authority for the position that it is the imperative duty of the court to allow such an amendment under the circumstances surrounding the present case. The provisions of oúr code with zespect to amendments are based upon the very liberal rales of the chancery practice, according to which amendments to bills were constantly permitted. Such amendments might introduce new parties, or transpose the parties, or strike out some of them, whenever the interests of justice required it. As to the matter of the bill, the equity practice was and is likewise very liberal in regard to amendments, provided they are not such as effect an entire change of the cause of action. Even then such matters were always largely within the discretion of the chancellor, but Avere rarely permitted where all the facts were within the knowledge of the original complainant; or where the statutory period of limitation had expired and the defendants were entitled to it. And upon the reversal of a decree the appellate court would not grant the plaintiff leave to amend when the only amendment he could make to give him any relief would be in effect to institute a new cause of action. 1 Encyc. Pl. and Pr. 458, et seq.

In the case of Blake v. Minkner, 136 Ind. 418, it was said by Dailey, J.: “Under our code, the greatest liberality is shown in permitting amendments to the original complaint, not only amendments thereto may be made, but an amended complaint, stating a new cause of action, may be filed. It is only where the amendment involves a statute of limitations that a different rule applies. ”

The learned judge who wrote the opinion does not state whether such amendments (introducing a ,p.ew cause of action) are permitted as of right or are within the discretion of the court, and that this discretion should be exercised liberally in favor of amendments. That question not being before the court, the above language cannot be construed as holding that the statute absolutely enjoined the duty of allowing such amendments, and the most that we think the case decides is that the court may in a proper case permit such an amendment. The overwhelming weight of authority in other jurisdictions is against the right to substitute a new cause of action by way of amendment, although, as before stated, the mere form of the action may he changed when it refers to the same subject-matter. 1, Am. and Eng. Encyc. of Law, 548, et seq., and notes citing cases.

It is also held in many of the courts of last resort in this country that after a cause has been in the appellate court and reversed for error in overruling a demurrer to the complaint, it then becomes a matter of discretion with the court whether the complaint shall be amended at all or not, although the leave to amend should rarely be denied, except where the amendment changes the nature of the cause of action entirely. Thus in Farley v. Kittson, 27 Minn. 102, on appeal from an order overruling a demurrer to the complaint, the cause was reversed. Leave was asked in the supreme court to amend the complaint. The court held that while doubtless it had the power to grant such leave, it would rarely exercise it; that it was safer in such cases to allow the discretion to be exercised by the trial court, as that court is in a better position to know what has been done up to the decision upon the demurrer than the supreme court.

In Lathrop v. Adhisson, 87 Ga. 339, after a reversal it was held proper, in the discretion of the court, to allow an amendment of the complaint, as the amendment did not change the cause of action. The power to allow an amendment, as a matter of discretion, when it did not change the cause of action carries with it the power to reject such an amendment when it does change the nature of the action.

In Wallace v. Columbia, etc., R. R. Co., 37 S. C. 335, a demurrer to a complaint had been erroneously overruled, for which error the court adjudged a reversal. The cause being remanded, it was held proper to allow the complaint to be amended, the court saying: “When the circuit judge, in the exercise of his wise discretion in such cases, decided that the plaintiff should have leave to amend, there was no error, unless by his order he opened the door too wide for that purpose, or in not imposing terms as to payment of costs. ”

In Boettcher v. Colorado Nat'l Bank, 15 Col. 16, an amendment of a complaint, after a reversal of the cause, was held to be within the discretion of the court, and where it was refused when as much as four years had elapsed since the commencement of the action, the supreme court would not inquire whether the court had abused its discretion.

In Smith v. Bogenschutz, (Ky.) 19 S. W. R. 667, on reversal of the cause an amendment was allowed because it did not change the cause of action.

Many more cases to the same effect might be cited, but it is not necessary. Some of the cases go much, farther than we are required to go. We are not unmindful of the fact that whatever is the true rule in Indiana it must be predicated upon tbe provisions of our code, and that the decisions of other States may therefore not be applicable. But there is much similarity between the rules prevailing in equity practice and those of our code, as already pointed out, and the decisions of the courts of chancery, and in many instances of the common law courts, form valuable precedents and give important hints as to what should be the proper practice under the code. If it be said that ño case can be found where such provisions as our statutes contain upon this subject have been interpreted to be discretionary, we answer that neither has there been any interpretation that would carry the doctrine to the extent for which the appellant contends. If the doctrine of the right to amend absolutely were carried to its logical result, as claimed by appellant, it must follow that if after a cause has been reversed, with directions to sustain the demurrer to the complaint, the plaintiff demands it, the court is bound to grant him leave to amend to any extent whatever, even to the making of new parties and the introduction of a new cause of action.

Thus, in the present case, the appellant could just as well have dismissed as to Hawkins also, and sued John Hoe upon a promissory note by way of amendment; for if there is no limit to the right of changing the parties and the cause of action, we cannot see where the line is to be drawn. The statute does not admit of such an absurd interpretation. Courts may very properly look to the consequences resulting from certain constructions given to statutes. It is as much the duty of the courts to so interpret statutes as to give them a reasonable, just and beneficial effect, as it is their duty not to reject or arbitrarily disregard their plain words and provisions. Lake Shore, etc., R. W. Co. v. Cincinnati, etc., R. W. Co., 116 Ind. 578, and authorities cited on page 583.

Filed May 16, 1895; petition for rehearing overruled October 17, 1895.

The reasonable construction of the provisions of our code upon the subject of amendments is, as it appears to us, that so long as there is no change of the nature of the action it is the right of a plaintiff to amend his complaint at any time before answer, without leave of court, but that if the amendment seeks to introduce a new and different cause of. action after a demurrer has been sustained to the complaint, and especially after a reversal in the appellate tribunal, with direction to sustain such demurrer, whether such an amendment may be made as will change the cause of action, becomes a matter of discretion with the trial court; and if it appear that the proposed amendment is a departure from the original cause of action, and the court rejects it, this court will not disturb the ruling.

Judgment affirmed.