McCollum v. Lougan's Administrator

Ewing, Judge, delivered the opinion of the court. This was a proceeding, commenced in the county court, to compel the administrator of the estate of S. Lougan, deceased, to execute specifically a contract for the conveyance of [452] land. Aftei’ tbe petition was presented in tbe county court, the case was transfeiued to tbe circuit court, leave bavbxg been first given to file an amended petition. In tbe circuit court, a demurrer was filed to tbe petition at tbe April term, 1858. The plaintiff filed an amended petition with the clerk in vacation, and at tbe November term, 1858, following, tbe defendant filed bis motion to strike out tbe amended petition. The motion was overruled, and tbe defendant excepted ; and no answer having been filed, plaintiff had a decree for the specific performance of tbe contract. No motion was made to set aside tbe decree and grant a new bearing, nor in arrest of judgment. Tbe errors assigned are, that tbe filing tbe amended petition with the clerk was unauthorized, and that it should for that reason have been stricken out; and .that no decree ought to have been entered upon tbe amended"p.etition until tbe demurrer bad been disposed of. It may be^onceded that tbe filing the petition with tbe clei’k was irregular; but tbe subsequent action of the court upon it recognizing it as a pleading in the cause, and as taking tbe place of the original petition, was equivalent to granting formal leave to file it in term. It may be considered as having been filed for the first time regularly at tbe November term, 1858, when a motion was made by tbe defendant to strike it out and overruled. Tbe action of tbe court in thus overruling the motion, although no previous leave bad been given authorizing the amendment, cured any irregularity in filing it with tbe clerk without leave. As it respects the second point, we think the amended petition superseded tbe original one to which the demurrer had been filed, and the amendment having been allowed pending the demurrer, the demurrer was thus impliedly sustained. The amendment to the petition could not have been permitted without at the same time having in effect disposed of the demurrer. Upon the whole case, we can see no such objections to the proceedings as require us to reverse it; and the other judges concurring, the judgment will be affii'med.