Dever v. City of Junction City ( 1896 )

Clark, J.

The first contention of the plaintiff in error is, that, as the defendants had filed no answer to the petition at the time the pleading denominated “ amended and supplemental petition ” was filed, the plaintiff had the right, under section 136 of the Civil Code, to make any amendments to his petition which he thought advisable to make and that no “leave of court” was required, and that the defendants were-given due notice of the filing of such petition. In support of this contention, the plaintiff in error directs our attention to a paper, which is set out in the transcript of the record as a part thereof, marked “ Notice,” and which, upon its face, purports to be a typewritten acknowledgment by the attorney for the defendant of the service upon him, on March 19, 1891, of notice of the filing of an amended and supplemental petition. Whether in fact this notice was served, or the attorney for the defendants acknowledged service thereof, cannot be learned from the record. There is nothing to show that the acknowledgment of service was signed by the attorney for the defendant. The evidence upon the hearing of the motion, if any was introduced, is not preserved, and for aught that appears the court may have sustained the motion because the defendants were not given the proper notice of its having been filed.' But even if the court erred in its ruling, the error was not prejudicial, as no exception was saved thereto, and the amended petition, which was filed after having obtained leave of court, contained substantially the same allegations and prayer for relief as were set out in the "amended and supplemental” petition.

As we construe the original petition, it does not state sufficient facts upon which to base a prayer for damages. The plaintiff attempted to enjoin the defendants from doing certain acts, and assigned as his reason for instituting such proceeding that he had no adequate remedy at law. The Supreme Court held that the petition failed to state sufficient 'facts to warrant the interposition of a court of equity. It was after that decision was rendered that the plaintiff endeavored to file such a statement of facts as would entitle him to a recovery against the defendants ; and, in doing so, he virtually alleged that the acts which he originally sought to enjoin had, in fact, been consummated by the defendants, and that he had sustained damages by reason thereof; thus changing substantially his claim against the defendants. The rights of the parties are to be determined as they existed when the suit was commenced ; and, as at that time the plaintiff was not entitled to a recovery, he could not compel the defendant to litigate in that action a controversy concerning matters which occurred after the filing of the original petition, and to which reference was first made in a supplemental petition filed without leave of court. We think that the pleading filed by the plaintiff as an amended petition was, in fact, a supplemental petition, and that the court did not err in striking it from the files.

Nearly four years after the commencement of this action the plaintiff asked leave of court to add certain specific amendments to his original petition, but, as the matter of allowing amendments to pleadings is one largely within the discretion of the trial court, only an abuse of such discretion will be reviewed by an appellate court. We do not think the court erred in refusing to allow the proposed amendments. As the petition then failed to state a cause of action, there remained no question to be litigated between the parties ; and the court very properly sustained the motion to dismiss the action at the cost of the plaintiff. The judgment will be affirmed.