Thompson v. Hibbs

Mr. Justice Bean, after stating the facts in the foregoing terms, delivered the opinion of the court. [145] 1. Before there can be an amended pleading there must, of course, be something to amend, otherwise the pleading when filed will be an original and not an amended one; but, in our opinion there was sufficient in the original complaint to justify the court in permitting an amendment. It contained the title of the court and the names of the parties, alleged the making of the joint and several promissory note by the plaintiff and the two defendants and Rogers, the payment thereof by the plaintiff, the fact that no part of the money so paid by him had been returned except certain sums, the death of Rogers, and the liability of each of the defendants to the plaintiff for an undivided one third the amount paid by him, and prayed judgment against them for such amount. It is admitted that the complaint did not state facts sufficient to constitute a cause of action at law or a suit in equity by one surety against another for contribution, because it did not allege the name of the party for whose benefit the note was made, or that plaintiff and defendants were sureties thereon; but it manifestly attempted to state such a cause, and, however imperfect it may have been, it was sufficient to justify the trial court, in the exercise of a sound discretion, in permitting an amendment, under the liberal rules which prevail in this State : York v. Wash, 42 Or. 321 (71 Pac. 59). 2. It is insisted that the second amended complaint states or attempts to state facts requiring the interposition Of a court of equity, while the original complaint was an action at law, and that the court erred in permitting an amendment which changed or attempted to change the proceeding from an action at law to a suit in equity. Conceding, for the purposes of this case only, that under our system litigants are compelled at their peril properly to designate or entitle proceedings commenced by them— that is, whether at law or in equity — and that one who [146] files a complaint at law, and finds he is mistaken in the forum having jurisdiction to grant the relief to which he is entitled under the facts stated, cannot amend so as to change the jurisdiction to the equity side of the court, we yet do not think the doctrine applicable here. Although the original proceeding in question was designated and conducted throughout as an action at law, the nature of the relief sought and the facts alleged, or attempted to be alleged, entitle the plaintiff to relief in equity only. Where one surety is compelled, on account of the neglect or failure of the principal, to pay or discharge a common debt, he has a right to contribution from his co-sureties, which he may enforce either at law or in equity. At law, however, he must bring an action against each surety separately for his aliquot part, which is all that can be recovered, even when one or more of the sureties are insolvent. In the latter case the proceeding must be in equity against all the co-sureties, and, upon proof of the insolvency of one or more, the payment of the amount will be distributed among the solvent parties in due proportion: Fischer v. Gaither, 32 Or. 161 (51 Pac. 736); Easterly v. Barber, 66 N. Y. 433. When, therefore, the plaintiff commenced a proceeding for contribution jointly against two of his three co-sureties, it was necessarily in equity, whatever name his counsel may have been pleased to give it. Its nature and character, from a legal point of view, are to' be determined from the facts as pleaded, or attempted to be pleaded, and the relief sought, and not from what it may be called. The complaint did not change the proceeding from equity to law by simply calling or designating it as “ an action,” when, under the facts, relief could be granted only in equity. Thus, in Beach v. Guaranty Sav. Assoc. 44 Or. 530 (76 Pac. 16), the plaintiff brought what he denominated an “ action at law.” The [147] trial court held, however, that upon the facts stated it was a suit in equity, and overruled plaintiff’s motion for a jury trial. The plaintiff declining to proceed further, the complaint was dismissed, and on appeal the decree was affirmed on the ground that the proceeding was in equity. Under our system, law and equity courts are presided over by the same judge, and it would be sacrificing justice to the merest technicality to hold that a plaintiff was not entitled to invoke the jurisdiction of the tribunal competent to grant him relief because he had mistakenly designated his proceeding in the other forum. We are therefore all agreed that the amendment allowed in this case did not in fact change an action at law to a suit in equity. 3. It is claimed that the amended complaint as filed did not state facts sufficient to constitute a cause of suit, because the Gaston Cooperative Milling Company and the personal representatives of Rogers are not parties. No such objection was made in the court below, and it is therefore waived: B. & C. Comp. §§ 68, 71; State ex rel. v. Metschan, 32 Or. 372 (46 Pac. 791, 53 Pac. 1071, 41 L. R. A. 692). 4. In giving judgment, the court computed interest on the amount paid by the plaintiff to satisfy and discharge the promissory note to the Bank of Forest Grove at the rate of 8 per cent per annum to the date of the decree. This was error. The interest should have been computed at 8 per cent until the time the rate was changed in October, 1898, and from that time at 6 per cent: Graham v. Merchant, 43 Or. 294 (72 Pac. 1088). The decree will be modified accordingly; neither party to recover costs in this court. Modified.