Lumpkin v. Collier

Henry, J.

The only question for determination is, whether the amendment was allowable under our practice act. The original was an action ex contractu. The suit was on a bond of indemnity given to the sheriff to induce him to seize certain property under an execution to which the plaintiff, relator, laid claim. The cause of action stated in the amended petition was trespass for seizing, taking and carrying away personal property Alleged to have been the property of plaintiff'. Appellant’s counsel rely upon section 7 of our practice act, (2 Wag. Stat., p. 1035,) which is as follows : “ A petition or answer may be amended by the proper party, of course, without costs, and without prejudice to the proceedings already had, at any time before the auswer or reply thereto shall be filed.”

There is no case in our reports which sanctions such an amendment as was made in this. In Lottman v. Barnett, 62 Mo. 159 , the original petition was filed by plaintiff against eight defendants, of whom Barnett was one, stating that her husband was a carpenter engaged in the construe *174 tion of a building, the property of defendants, and while so engaged was killed by the falling of the southern portion of said building, and that her husband’s death was occasioned by the carelessness, &e., of defendants and their servants in the construction of the building. Subsequently she dismissed as to all the defendants except Barnett, and, by leave, filed an amended petition containing the same allegations as the original, but alleging that defendant, at the time of the accident, and for a long time previous, was the superintending architect in charge of said building, and was intrusted as such with the construction and completion of the same, having the entire superintendence and management of the work and materials, and that the falling of the southern portion of the building was caused by his carelessness and negligence. Napton, J., who delivered the opinion of the court, observed that: “Both causes of action, or rather the only cause of action asserted, either in the original petition, or the amendment, was based upon the 3rd section of our statute concerning damages.” Again: “ All the parties originally sued were, in fact, liable, and the case might well have been tried on the original petition“ The defendant was liable on the first petition, as he was held to be on the second. The gist of the action was the same in both, to-wit: the death o.f plaintiff’s husband by the negligence of the defendant, either as proprietor or architect and superintendent of the building. It would require precisely the same evidence to support the action after the amendment as before.” I have italicized those portions of the opinion which clearly indicate the ground upon which that decision was based. That case “ might have been tried on the original petition;” this could not have been tried on the original petition. In that the “ gist of the action was the same in both;” in this, while some of the facts are common, both to the case asserted in the original and that stated in the amended petition, the cause of action in the one is entirely different in its character from that contained in the other. In Lottman v. Barnett *175 “it required precisely the same evidence to support the action after the amendment as before.” In this, the case could not have been made out on the original petition without proof of the bond, while that stated in the amended petition might have been established if there had never been an indemnity bond given.

The terms of section 7 will not warrant the liberal construction contended for by appellant’s counsel. It does not allow an amendment which could not have been made before it was enacted; but allows such amendments as before could only be made in the discretion of the court and with costs, to be “of course without costs.” There is nothing in the section, or the scope and spirit of our practice act, requiring a construction of section 7 which will introduce so radical change in the law of pleading as appellant’s counsel contend has been .effected. The cause of action stated in the original petition could not be united in the same petition with that stated in the amendment. Wag. Stat., § 2, p. 1012. If the amendment made by plaintiff, in this case, be permitted, there is no limit to the right to amend. An action of replevin for a horse could by amendment be converted into action of ejectment, or an action on an account into an action for slander. A defendant served with process pn one cause of action, suffering a default, might be confronted with a judgment on a cause of action totally different from that which he was summonéd to answer.

In the Board of Supervisors, &c., v. Decker, 34 Wis. 378 , the court observed of the case of Brayton v. Jones, 5 Wis. 117 : “ It is there shown that an amendment before trial, which attempts to change the nature of the-action from one in tort to one" in contract, is properly not an amendment, hut a substitution of a cause of action different in nature and substance to that originally stated.” In McNair v. Compton, 35 Pa. St. 26, the court, Woodward, J., observed of an amended narr.i “We think there was error in refusing to strike off’ the amended narr. That it was intro *176 ductory of a new cause of action is as certain as the distinction between actions ex contractu and actions ex delicto. The first count was for a breach of a parol promise to sell and convey land; the second was for deceit in pretending to own land contracted for.” Adjudications to the contrary may be found, but as the amendment made in this case was not allowable at common law, some provision of the statute must authorize it before it can be allowed, and a reasonable and liberal construction of the terms of section 7, which is relied upon, does not authorize such an amendment. Judgment affirmed.

The other judges concur.

Aeeirmed.