Adams v. Webb , 104 Okla. 180 ( 1924 )

The only question presented by this proceeding is whether the trial court erred in sustaining the motion of the defendant to strike the amended petition of the plaintiff from the files of said cause.

By Comp. Stat. 1921, sec. 315, it is provided:

"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."

This statute has been passed upon by this court, so, if the language of the statute itself were susceptible of two constructions, that which has been adopted in this state is well defined. In Willis et al. v., Cochran et al.,66 Okla. 257, 168 P. 658, it is said:

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

In Hocker v. Rackley, 90 Okla. 83, 216 P. 151, this court said:

"The right of plaintiff to amend his petition before answer is an absolute one, and the plaintiff may plead an additional cause of action relating to the same subject-matter."

It is thus seen that plaintiff had an absolute right to file an amended petition without leave of the court at any time before answer was filed. But was this pleading really an amended petition? It was based upon a curative tax deed issued to plaintiff subsequent to the filing of his original petition, and for the purpose of curing possible formal defects in the original deed. Comp. Stat. 1921, sec. 323, provides:

"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."

To file a supplemental petition leave of court is necessary, and the action of the court thereon is discretionary. Wade v. Gould, 8 Okla. 690, 59 P. 11; Reader v. Farriss,49 Okla. 459, 153 P. 678. Whether such a pleading is amendatory or supplemental must be determined from its substance rather than from the title given it by the pleader. State ex rel. Morrison v. City of Muskogee. 70 Okla. 19, 172 P. 796.. Clearly it was the intention of plaintiff in filing the pleading which he did file to aid and strengthen the cause of action set forth in his original petition by stating facts arising since the commencement of the action. This constitutes it a supplemental petition. National Bank v. First Nat. Bank, 39 Okla. 225,134 P. 866. After the action of the trial court in sustaining the motion to strike, the case stood as it did before the supplemental petition was filed. The case was not disposed of, but defendant should have been required to plead to the original petition either by demurrer or answer so that issues of law or of fact could be joined and determined.

It is insisted by defendant that the resale tax deed attached to plaintiff's amended petition is void upon its face, and for this reason the order of the trial court striking such amended petition from the files is final. The language of Mr. Justice Sharp, in the case of Hailey et al. v. Bowman, 41 Okla. 294,137 P. 722, is very apropos to this contention of the defendant, wherein he said:

"It is obvious that counsel have misconceived the purposes of a motion to strike. Where objections to a pleading are based, not on any irregularity connected with its filing, nor on any matter pertaining merely to its form, but on its alleged insufficiency in matter of substance, the objection ought to be taken by demurrer, and not by motion to strike. First Nat'l Bank v. Cochran, 17 Okla. 538, 87 P. 855; Finch v. Finch, 10 Ohio, St. 501; Savage v. Challiss et al., 4 Kan. 319; Armstead v. Neptune, 56 Kan. 750, 44 P. 998."

The sufficiency or insufficiency of a petition to state a cause of action cannot be tested upon a motion to strike, under the above authorities, so that the sufficiency of the amended petition in this case to state a cause of action, or the sufficiency of the exhibit attached thereto to comply with the statutory requirements relative to tax deeds, are neither before this court in this proceeding.

For the reasons herein stated, this cause should be remanded to the trial court, with directions for further proceedings in conformity to law.

By the Court: It is so ordered.