Orton v. Noonan , 31 Wis. 90 ( 1872 )

Oole, J.

The counsel for the defendant contended that the act of 1869 did not authorize, in a case like this, the filing of an amended verified complaint without leave of court; and that, as the amended complaint in this action was so filed, it is to be disregarded. It seems to us this position is sound and must be sustained.

This action was pending when the law of 1869 took effect, but no verified complaint had been filed. The plaintiff, however, was at liberty to file a complaint with a verification, and containing the allegations required by this law, within such reasonable time as the court might direct. But he was at liberty to file such complaint only upon leave of the court. He could not file it as a matter of course, upon his own motion or at his own pleasure. This, we think, is very clear from the language used in the proviso. The plaintiff might file his verified complaint in an action pending when this law went into operation, “ within such reasonable time ” as the court might direct; plainly implying that application was to be made for leave to file such complaint. This view derives support from the practice in regard to amendments. The plaintiff would not have had the right to amend the complaint of course in the position the case was in. More than three years had elapsed since ■ an answer and demurrer had been filed to the original complaint; and the right to amend, except upon leave, was gone. This consideration strengthens the view already expressed as to the proper construction of the law of 1869.

The verified complaint has been sent up with the record on this appeal; but there can be no presumption from that fact that the plaintiff obtained leave to file it, because the clerk has made an affidavit, which is also returned, in which he states that he has searched the records and docket entries pertaining to the action, and has found no order, nor record of any order, made by any officer, which authorized the filing of this complaint. This entirely rebuts any presumption which might otherwise arise from the record, that the complaint was filed upon leave had from the court. It is very obvious that it is now improperly among the papers in the cause.

If the verified complaint could only be filed upon leave of the court, then we suppose it necessarily follows that the one filed August 3d, 1869, was rightly disregarded. And of course the garnishee proceeding was properly dismissed, inasmuch as the plaintiff had failed to comply with the requirements of the act of 1869.

These remarks dispose of the case, and render it unnecessary to consider the other questions discussed upon the argument.

By the Court. — The order of the county court is affirmed.