Bradley v. Missouri Pacific Railroad

Humphreys, J. Appellant instituted suit against appellee in the Greene Circuit Court, under the provisions of the Federal Employers’ Liability Act, to recover damages in the sum of $3,000, on account of injuries to the arches of his feet, occasioned by loading heavy rails for' shipment, resulting from the alleged negligent failure of appellee to furnish sufficient hands to perform the work with safety to the employees engaged therein. The sufficiency of the complaint was challenged by demurrer of appellee. . The court sustained the demurrer over the objection and exception of appellant. About two days thereafter, at the same term of court, appellant asked permission to file an amended complaint and to treat the demurrer as having been filed to it. Attorney for appellee had gone when the request was made. The court denied the request, to which ruling appellant excepted. Prior to the adjournment of court in course, the court entered an order sustaining the demurrer to the original complaint, in which it was recited that appellant refused to plead further in the action, whereupon the complaint was dismissed, at appellant’s cost, to which ruling of the court, the appellant at the time excepted and prayed an appeal to the Supreme Court, which was granted, providing in the order that 120 days was allowed appellant in which to file his bill of exceptions. No bill of exceptions was filed. On the 11th day of March, at the regular March, 1920, term of court, appellant filed a motion for a nunc pro tunc order of the court to correct the judgment entry made at the October term, 1919, of court, so as to show that he offered to file an amended complaint two days after the demurrer was sustained to his original complaint, and before the' judgment sustaining the demurrer to the original complaint and dismissal thereof was entered of record, which request was denied over the objection and exceptions of appellant. The motion for a nunc pro tunc order was overruled by the court, to which ruling appellant at the time excepted and prayed an appeal to the Supreme Court, which was granted. A transcript embracing the proceedings from the inception of the suit was filed in this court on March 26, 1920, within six months from the judgment sustaining the demurrer to and dismissing the original complaint. It is insisted by appellee that, because no bill of exceptions was filed by appellant within 120 days from the rendition of the original judgment at the October, 1919, term of court, no appeal is, or can be, prosecuted from it; that the only appeal before the court is from the judgment refusing to issue a mmc pro tunc order at the March, 1920, term of said court; that, for that reason, the appeal from the judgment refusing to issue a mmc pro tunc order is a collateral attack upon the judgment rendered at the 1919 term of said court, and that said latter judgment is not subject to collateral attack. We can not agree with learned counsel for appellee in this contention. No bill of exceptions was necessary in order to prosecute an appeal from the original judgment. The case went off on demurrer. The errors complained of will appear on the face of the record, if it was error on the part of the court to refuse to enter the nunc pro tunc order requested by appellant at the subsequent term of court. It is insisted by appellant that the court erred in refusing to enter the nunc pro tunc order correcting the original judgment so as to show that, before the order was entered sustaining the demurrer to his original complaint, he offered to file an amended complaint, which request was denied over his objection and exception. The request was made only two days after the order was made sustaining the demurrer and at the same term of the court. It is trpe it was accompanied by a request that the demurrer to the original complaint be treated as a demurrer to the amended complaint. The latter request might easily have been denied and the first granted. The mere fact that the request was a joint one, or covering two matters, did not prevent the court from granting one and refusing the other. The fact that the attorney for appellee had gone was no reason why appellant should be denied the right of filing an amended complaint within so short a time after a demurrer had been sustained to his original complaint. Appellant should have been permitted to file the amended complaint with reasonable opportunity to appellee to plead thereto. The provision for amendments to pleadings, under the statutes of this State, is liberal. It is provided in section 6095 of Kirby’s Digest that “If the court sustains the demurrer, the plaintiff may amend, with or without costs, as the court may order.” It was said, in the case of Burke v. Snell, 42 Ark. 57, that “The primary object of the Code is the trial of causes upon their merits, and to that end the provisions for amendments are exceedingly broad and liberal;” and, in the case of Dickerson v. Hamby, 96 Ark. 163, that “It is a general rule that it is almost a matter of course to permit parties to amend their pleadings upon a demurrer thereto being sustained and before trial.” Treating the amendment of pleadings as a matter within the sound discretion of trial courts, we think the court erred in denying. appellant the privilege of filing an amended complaint in the instant case, and in dismissing his complaint after an offer by him to file an amended complaint. The demurrer also challenges the sufficiency of the original complaint, but we deem it unnecessary to pass upon that, as appellant has requested the privilege of filing an amended complaint. For the error indicated, the judgment is reversed and the cause remanded with instructions to reinstate the cause, correct the original judgment to reflect the facts, to permit appellant to file an amended complaint, and for further proceedings not inconsistent with this' opinion.