Dunbar v. Griffiths

AILSHIE, C. J.

This appeal is from the judgment and .•an order denying a motion for a new trial. The action is one to quiet title. Plaintiff’s complaint is-in the usual form, .alleging fee simple title and exclusive right of possession. Defendant answered denying plaintiff’s title and right of possession and alleged title and exclusive possession and right of possession in himself. The cause was tried on an .amended complaint, which appears to have been filed on September 2, 1904. The answer was filed on February 7, 1905. 'So far as the record is concerned, the case appears to have rested without any further proceedings being had thereon •except the taking of some depositions, until March 1, 1906. *123 The ease seems to have been previously set for trial for the latter date. Before entering upon the trial, the defendant hied an amended answer containing the same denials and affirmative allegations as contained in his original answer, and in addition thereto alleging that he was the owner of the property in question and that he deraigned title through a sheriff’s deed issued on an execution sale in a case wherein Sweet, Dempster & Co. had procured judgment against W. C. Dunbar, a brother of the plaintiff. Defendant alleged that while W. C. Dunbar was heavily indebted and in an insolvent condition, he purchased this tract of land and caused the same to be conveyed to his brother Hiram C. Dunbar, and that the latter acquired no interest therein and paid nothing whatever therefor, and was cognizant of the fraud being perpetrated on the creditors of W. C. Dunbar, and that in furtherance of the fraudulent purpose and with a view to concealing the fraudulent character thereof, Hiram C. Dunbar transferred the property, without consideration, and in furtherance of the fraud upon W. C. Dunbar’s creditors, to the plaintiff herein. It was further alleged that the transfer and transaction whereby the plaintiff acquired the legal title to the property was fraudulent and void as against the creditors of William C. Dunbar, and that in truth and in fact the judgment debtor, William C. Dunbar, at all times prior to the execution sale, exercised the sole and exclusive control and right of possession over the property. The defendant did not seek any affirmative relief, nor did he ask for a decree quieting his own title, but only prayed that the plaintiff’s prayer be denied and that his action be dismissed. The amended answer was filed March 1, 1906, being a year and one month after the filing of the original answer. On motion of the plaintiff the court made an order striking the .amended answer from the files upon the ground that it had not been made until the time set for the trial of the ease, ■and that it had been filed without leave of the court. The defendant at the time of this ruling made the following .statement and offer to the court: “If there is any reason why any terms should be granted to the other side, we will *124 agree to anything that the court decides in this matter. We have relied upon the fact that we would have the right to amend. We feel that if the court will give us permission, we can present to the court proper showing why this amendment has not been made before, and to deny us this right practically denies us the right to make a defense in this case.” The court denied the application and refused to give the defendant time or opportunity to make a showing why he should be allowed to go to trial on his amended answer as presented to the court. The trial proceeded, and after the plaintiff rested, the defendant submitted evidence tending to prove each of the allegations of his amended answer and tending to establish that the equitable title rested in him, and that the plaintiff’s legal title had been acquired in fraud of the creditors of the judgment debtor. The court excluded all the evidence tending to establish such defense and entered judgment against the defendant and in favor of the plaintiff, quieting his title. The defendant, who is appellant in this court, argues, first, that under the provisions of section 4228, Rev. Stat., he was entitled to amend his answer as a matter of course, at any time before actually entering upon the trial of the case. That portion of see. 4228 on which appellant relies is as follows: ‘‘Any pleading may be amended once by the party of course, and without costs, at any time before answer or demurrer filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended, and sexwing a copy on the adverse party, who may have ten days thereafter in which to answer or demur to the amended pleading.” The section provides that, “Any pleading may be amended once by the party of course,” provided that he does so “before answer or demurrer filed, or after demurrer and before the trial of the issue of law thereon. ’ ’ (Hedges v. Dam, 72 Cal. 520 , 14 Pac. 133 ; Spooner v. Cady (Cal.), 36 Pac. 104 .) The language of this section is somewhat uncertain as to the limitation of time within which this amendment may be made as a matter of course. It is clear to us, however, that where an answer has *125 been filed and a demurrer has been interposed, that either the demurrer or answer may be amended as a matter of course at any time “before the trial of the issue of law thereon.” We think, however, that this section must be read in connection with the other provisions of the statute (sees. 4174, 4176 and 4140, Rev. Stat.) fixing the time for demurrer or answer to a pleading. A plaintiff may demur to the defendant’s answer within ten days after service thereof (sec. 4193, Rev. Stat.) If he does not demur within that time, he has no absolute right to do so thereafter without leave of court. If he should let the time for filing a demurrer to the answer expire without demurring, we do not think the defendant would thereafter be entitled to amend his answer as a matter of course, but would be then bound to invoke the discretion of the court (which must be liberally exercised) as provided for under sec. 4229. In this case we think the court abused its discretion, at least in that he refused to allow the defendant to make a showing as to why he had not previously filed his amended answer and the reasons for his delay. Had the delay caused plaintiff any material injury or delay, the court could have protected him by imposing terms on defendant. Defendant might have been able to make a showing that would have established a clear and convincing case of abuse of discretion on the part of the court had the court still gone ahead and made the order striking the amended answer from the files. Since that showing is not before us, and was not before the trial court, we cannot surmise or anticipate what it would have been; but in view of the condition of the case and the pleadings at that time, and the statement of counsel and the refusal of the court to permit a showing, the whole transaction viewed together constitutes such abuse of discretion as calls for a reversal of the judgment. This court has often expressed the view that trial courts should be liberal in the matter of permitting amendments to pleadings where it appears that they are in good faith and their allowance would serve the ends of justice. (Kroetch v. Empire Mill Co., 9 Ida. 277 , 74 Pac. 868 ; *126 Kindall v. Lincoln Hdw. Co., 10 Ida. 13 , 76 Pac. 992 ; Murphy v. Russell & Co., 8 Ida. 133 , 67 Pac. 421 .) The judgment will be reversed and a new trial granted. The cause is rp-manded accordingly. Costs awarded in favor of appellant.

Sullivan and Stewart, JJ., concur.