Lackner v. Turnbull

By the 'Court, WhitoN, C. J. We think that the amendment of the complaint in this case was properly made. The code (§S0) provides that “ any pleading maybe once amended by the party of course without costs, and without prejudice to the proceeding already had, at any time before the period for answering it expires, or it can be so amended at any time within twenty days after the service of the answer or demurrer to such pleading, unless it be made to appear to the court that it was done for the purpose of delay.” In this case, the amendment was made within twenty days after the answer was filed, the answer having been filed on the 9th day of July, and the amended complaint having been served on the 16th day of the same month. This seems to be in conformity with the code. But it is contended by the counsel for the appellant, that the amendment which was made in this case is not allowed by the code, because it changes the cause of action. In support of the proposition, that amendments are not allowed by the code which change the cause of action, he cites numerous cases from New York, where a code of procedure similar to ours exists. But we do not think that [110] in strictness, the amendment which was made in this case did change the cause of action. It only changed the remedy. The judgment which was rendered became a lien upon the building and upon the interest of the defendant in the premises upon which the building was situated, from the time when the materials were furnished and the labor was performed, according to the provisions of chapter one hundred and twenty of the revised statutes, and the acts amendatory thereof, while, if the amendment had not been made the judgment would only have been a lien upon the real estate which the debtor had at the time of its rendition, and which he might afterwards acquire. But the “cause of action,” or in other words, the labor performed and materials furnished, were the same whether the plaintiff proceeded under the original or the amended complaint. By amending his complaint, he was enabled to obtain relief which he would not have been entitled to under the original complaint, but the “ cause of action” was not changed by the amendment. Judgment affirmed.