Evans v. Hughes County

Corson, J. This is an application to this court to amend its judgment in this case by adding thereto that “plaintiff have leave to amend his complaint within sixty days upon the payment of the costs of the appeal.” The court below sustained a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. No leave to amend was given in the order, and no judgment was rendered in the court below upon the demurrer. The plaintiff appealed to this court, and it affirmed the order made by the court below. The question presented is: Has this court power to grant the plaintiff leave to amend, or must he make such application to the trial court. While the power of permitting parties to [34] amend their pleadings is vested in the trial courts, and can only, in ordinary cases, be exercised by those courts, still we think this court possesses the inherent power, in disposing of cases brought before it on appeals, of directing that such amendments shall be allowed when this court deems it proper to make such a direction. This court has in numerous instances exercised the power. of directing what further proceedings the court below shall take in the action, by directing the court to dismiss the action, correct its conclusions of law, and enter judgment in accordance with the opinion of the court, and recently, in the case of Greeley v. McCoy, 54 N. W. Rep. 659, it amended the judgment of this court by adding thereto leave to the plaintiff to amend his complaint, although it affirmed the order of the court below sustaining a demurrer to the complaint. It is true, in that case leave to amend had been given in the order sustaining the demurrer, while in the case at bar no such leave appears by the order to have been given. But, in our view, the fact that such leave was given in the order in the case cited does not materially affect the question of the power of this court to direct an amendment in the court below. In the very recent able work on Appellate Procedure by Elliott, the learned author says: “Where the facts are not in dispute, or where it is evident that no recovery can be had in the particular instance, the appellate tribunal may remand the case with instructions to dismiss the action, or to enter a final judgment in favor of the party entitled to it under the law. So, on the other hand, it is proper for the court, where justice requires it, to direct that the affirmance shall not preclude another action. So, too, amendments may be suggested or directed in furtherance of justice, and direction may be given to admit parties. It is safe to affirm that the result of all the particular instances, as a valid inductive process will show, is that the judgment on appeal may so direct the trial court as to require it to vary, amend, or modify its decree or judgment as to make it effectively yield justice to the parties [35] whose interests are involved.” Section 569. The doctrine here laid down seems to be fully sustained by the practice of the appellate courts. The practice of making orders giving leave to parties to amend their pleadings in the court below, or giving parties the right to plead over in the court below, seems to be followed by the court of appeals of New York, whence our system of pleading is mainly derived. At the end of the decision in Lamming v. Galusha, 135 N. Y. 239, 31 N. E. Rep. 1024, after affirming the judgment of the supreme court at special term, is the following amendment of the judgment of the court: ■ “Said judgment was amended by order entered October 28, 1892, by adding thereto the following: ‘with leave to the defendants to withdraw their demurrer, and answer within twenty days after filing remititur in the supreme court, entry of order of judgment thereupon and service, ’ ” etc. See, also, for similar orders, Mitchell v. Thore, 134 N. Y. 536, 32 N. E. Rep. 10; Rose v. Hawley, 133 N. Y. 315, 31. N. E. Rep. 236; Haebler v. Myers, 132 N. Y. 363, 30 N. E. Rep. 963; Angell v. Van Schaick, 132 N. Y. 187, 30 N. E, Rep. 395; Johnson v. Golder, 132 N. Y. 116, 30 N. E. Rep. 376. In Rothschild v. Whitman, 132 N. Y. 472, 30 N. E. Rep. 858, after affirming a judgment of the supreme court at general term sustaining a demurrer to an answer, the court of appeals made the following order: “Judgment should be affirmed, with costs, with leave to the defendants to amend their answer within twenty days upon payment of costs.” In Rigg v. Parsons, 2 S. E. Rep. 81, 29 W. Va. 522, a demurrer to the complaint was sustained by the lower court, and the ruling of the trial court affirmed by the supreme court. In that case the court says: “It is clear, therefore, that the declaration at bar is fatally defective and insufficient, and that the ruling and judgment of the circuit court was correct. If nothing else appeared in the judgment and order of the court below, we would, notwithstanding thb fact that its ruling was not erroneous in sustaining the demurrer, reverse the judgment, and remand the case, with leave [36] to the plaintiff to amend his declaration if he elects so to do, since we can plainly see that it could be amended so as to avoid the grounds of demurrer. * * * But the order sustaining the demurrer in this case shows that the plaintiff declined to amend. The language of the order is: ‘And the plaintiff not desiring to amend his said declaration, ’ the court gave judgment for the defendant. * * * The only thing we can do, therefore, is to unconditionally affirm the judgment of the circuit court.” In the case of Railroad Co. v. Lohges, 33 N. E. Rep. 449, decided in March of the present year, the appellate court of Indiana made the following order: “The judgment is reversed, with instructions to the court below to sustain the demurrer to each paragraph of the complaint, with leave to amend.” See, also, Jones v. Shay, 72 Iowa, 237, 33 N. W. Rep. 650; Pierson v. David, 1 Iowa, 23; Sewing Mach. Co. v. Moore, 2 Dak. 280, 8 N. W. Rep. 131; Feldenheimer v. Tressel, 6 Dak. 265, 43 N. W. Rep. 94; Adams v. Smith, 6 Dak. 94, 50 N. W. Rep. 720. Such directions by the appellate court are made in furtherance of justice, and to prevent any misunderstanding in the court below as to the subsequent proceedings to be taken in the case. Certainly an appellate court, after a full examination of the case, is quite as well advised as to whether or not the party should be allowed to amend his pleadings as the trial court. We are clearly of the opinion, therefore, that this court not only possesses the power to give such directions, but that the power should be liberally exercised in furtherance of justice, in proper cases, to ithe end that causes shall, as far as possible, be tried upon their merits. While in the case at bar we are not able to see clearly how the complaint in this case can be amended so as to state a cause of action, we cannot say as matter of law that it cannot possibly be so amended, and hence we are disposed to give the plaintiff the opportunity to so amend his complaint, if he can do so. The judgment of this court will therefore be amended by adding thereto the following: “With leave to the plaintiff to amend his complaint [37] ■within sixty days after the remittitur is filed in the court below, upon payment of the costs of this appeal. ” Bennett, P. J., concurring.