North Side Loan & Building Society v. Nakielski

Dodge, J. We find ourselves unable to agree with the trial court that the amended complaint should have been stricken ■out. That document went no further than to somewhat amplify the facts stated in the original complaint, and to pray ■certain steps by the court within its equity powers necessary to enable granting the same relief prayed in the former pleading. Apart from the prayer the original complaint clearly and unambiguously states a situation arousing the power and ■duty of a court of equity to apply its peculiar methods in or■der to accomplish justice between the parties; and it contains industrious statement of facts having no relevancy whatever to any mere action at law which could be based upon the written instrument set forth. In Jos. Dessert L. Co. v. Wadleigh, 103 Wis. 318, 320, 79 N. W. 237, it was said: “When a complaint is presented for judicial inspection, it is the court’s first duty to ascertain the nature of the cause of action alleged, as well to protect the.rights of parties as to the place of trial, as to administer the proper remedy.” Approved in Klipstein v. Raschein, 117 Wis. 248, 94 N. W. 63; Grunert v. Brown, 119 Wis. 126, 129, 95 N. W. 959. In the Klipstein Case an allegation that defendant knowingly made certain false warranties was held sufficient to show conclusively that plaintiff intended an action in tort and not •on contract, although all the facts to support recovery on contract were present. Such reason would in the present case enforce the conclusion that the plaintiff intended to state a cause [543] of action in equity, for to no other end could be have alleged mistake in writing the bond, or knowledge by defendant of tbe amounts and acts essential to a recovery, and plaintiff’s ignorance thereof. Somervaill v. McDermott, 116 Wis. 504, 93 N. W. 553. But it is urged the prayer is for purely legal relief, namely, merely a judgment for a sum of money. Such relief is, however, equally within the power of a court of equity, though ordinarily to be had in that jurisdiction only when other of its powers are sought to be invoked also. The most, therefore, that can be said of the prayer is that it did not demand all the activities of the court to which the cause of action stated by plaintiff entitled him. In construing a pleading where the facts alleged leave doubt as to the cause of action which the pleader intended to present, the prayer may often be helpful in elucidating that intent. Gillett v. Treganza, 13 Wis. 472; Topping v. Parish, 96 Wis. 378, 381, 71 N. W. 367. But, after all, the prayer is no part of the cause of action (Pomeroy, Cod. Rem. [4th ed.] § 471), and, if that is clearly set out, cannot refute it. We recently declared : “In treating a complaint to determine whether it is single or double as regards primary rights, the different objects in view by the pleader as indicated by the prayer for relief are not controlling. They are of no significance whatever, except to aid in clearing up obscurities that may exist as to whether he intended to state facts showing a violation of distinct primary rights or not. When there is no obscurity in that regard, the statement of facts upon which the prayer for relief is based alone speaks.” South Bend C. P. Co. v. George C. Cribb Co. 105 Wis. 443, 447, 81 N. W. 675. See, also, Fischer v. Laack, 76 Wis. 313, 321, 45 N. W. 104. It is, of course, settled law in this state that those inherent differences between tort and contract and between law and equity cannot be ignored by courts in allowing amendments of complaints, in view of the limitation imposed by sec. 2830, Stats. 1898, that such amendments shall not substantially [544] change the claim. Jos. Dessert L. Co. v. Wadleigh, supra; Post v. Campbell, 110 Wis. 378, 85 N. W. 1032; Gates v. Paul, 117 Wis. 170, 94 N. W. 55. It has also been held that the right of a plaintiff to amend before defendant has been pnt to his defense under sec. 2685, Stats. 1898, has some limitation, although the statute imposes none. Carmichael v. Argard, 52 Wis. 607, 9 N. W. 470. It is, however, no infringement of the rule of these cases to hold that, to a complaint which sets forth all the facts warranting equitable relief, the prayer may be amended to demand other and further relief consistent with the cause of action originally described in the allegation of facts within the period limited by sec. 2685, Stats. 1898, and by authority of that section. Concluding, as we must, therefore, that the service of the amended complaint was within the plaintiff’s right, of course the order striking out the same, as also judgment dismissing the action, were both erroneous. That complaint fully excused any lack of particularity by reason of plaintiff’s ignorance of details resulting from defendant’s breach of duty to inform it of his official acts, and presented a situation calling for the exercise of the court’s equitable power to impose the duty of accounting in the first instance upon such defendant. Somervaill v. McDermott, supra. By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.