Phy v. Edgerton

This case appears in this court for the third time. The action was originally brought by the plaintiffs against the present defendant and one Selby. A demurrer to the fourth amended complaint was sustained by the trial court, and judgment of dismissal entered. On appeal to this court the ruling on the demurrer was sustained, but the judgment was modified by remanding the cause to the trial court with authority within its legal discretion to entertain and determine a motion to amend the complaint, should such motion be made within a specified time. (Phy v. Selby, 35 Idaho 409,207 P. 1077; opinion on rehearing, 35 Idaho 417,207 Pac. 1080.) Within the time specified, the plaintiffs moved in the trial court for leave to file their fifth amended complaint, tendering with their motion the proposed amended complaint. The matter was heard and submitted in the trial court upon the argument of counsel for plaintiffs and defendant Edgerton, Selby having been omitted as a defendant in the fifth amended complaint; and the trial court denied the motion, and again entered judgment of dismissal. Upon appeal from this second judgment, it was held by this court (Phy v. Edgerton, 40 Idaho 67,231 P. 426) that the trial court had abused its discretion in refusing to allow the amendment, and the judgment was reversed and the cause remanded with instructions to the trial court to direct that the amended complaint be filed, and that defendant appear and plead within such time as might be fixed by the trial court. Pursuant to the remittitur upon the last-mentioned appeal, the trial court ordered the fifth amended complaint to be filed. Thereupon, the defendants moved to strike it upon the ground that it set forth a different cause of action than that attempted to be set forth in the original complaint, which motion was granted by the trial court, and a third judgment of dismissal was granted, from which the present appeal is taken. In Phy v. Edgerton, supra, the following language appears: *Page 533 "When this court remanded this cause to the trial court with directions to entertain and determine a motion to amend the complaint, it would seem that it in substance said to the trial court that if appellants filed an amended complaint which stated a cause of action within the scope and purview of the cause theretofore attempted to be stated, the trial court should not refuse such amended complaint merely because a number of efforts had theretofore been made by appellants to state a cause of action, and that considerable time had elapsed during which the cause had been pending." Finding the proposed amendment a proper one within these considerations, this court ordered it filed. It was thus decided that the cause of action set up in the fifth amended complaint was within the scope and purview of the cause theretofore attempted to be stated, and this ruling became the law of the case. (Williams v. Sherman, 36 Idaho 494, 502,212 Pac. 971; City of Nampa v. Nampa Meridian Irr. Dist., 23 Idaho 422,121 P. 8; Hall v. Blackman, 9 Idaho 555, 75 P. 608.) The trial court should not have again considered the question upon respondent's motion to strike. It is, of course, the general rule that the sufficiency of an amended complaint, as against a demurrer, is not to be determined upon motion to amend, unless the proposed amendment is clearly frivolous or immaterial; but in view of the delay in this case caused by the necessity of the second appeal, this court, upon that appeal, examined the tendered amendment with regard to its sufficiency as stating a cause of action, and held that it did state a cause of action. This ruling also became the law of the case, and the defendant should now be required to answer. We recommend that the judgment be reversed and the cause remanded, with directions to the trial court to require the defendants to answer forthwith. Costs to appellants. Varian, C., concurs. *Page 534