With the rule that quo warranto, or a proceeding in the nature thereof, lies only against one who is in the possession and user of the office, and not against one who merely lays claim to the office, or who has never been admitted thereto, I have no disposition to take issue. By section 4919, Rev. Laws 1910, the writ of quo warranto and proceedings by information in the nature of quo warranto are abolished, but it is there provided that the remedies theretofore obtainable in those forms may be had by a civil action, and, as held in Newhouse v.Alexander, 27 Okla. 46, 110 P. 1121, 30 L. R. A. (N. S.) 602, Ann. Cas. 1912B, 674, permits a private person to contest with another private person the right or title to a public office. The remedy afforded being that of a civil action, under the statute the pleadings in such an action are governed in general by the rules applicable to pleadings in ordinary civil actions. 32 Cyc. 1447. Statutes relating to amendments in civil suits are generally held applicable to quo warranto, or to a proceeding in the nature thereof. Commonwealth v. CommercialBank, 28 Pa. 386; State ex rel. Ballard v. Greene, 87 Vt. 94, 88 A. 515; State v. Gleason, 12 Fla. 190; West End v. Stateex rel. O'Leary, 138 Ala. 295, 36 So. 423; Hinze v. Peopleex rel. Halbert, 92 Ill. 406; Kelly v. State ex rel.Kierskey, 79 Miss. 168, 30 So. 49; Gunton v. Ingle, 4 Cranch, C. C. 438, Fed. Cas. No. 5,870; High Extraordinary Legal Remedies, sec. 737; Spelling, Injunctions and Extraordinary Remedies, sec. 1856.
The right of the plaintiff to file an amended petition in a proceeding in the nature of quo warranto, for the *Page 467 same reason, in proper cases, would afford the right to file supplemental pleadings, as authorized by section 4795, Rev. Laws 1910. The only material change found in the supplemental petition from that contained in the original petition is the allegation that on the 4th day of January, 1915, the defendant qualified and took possession of the office of sheriff, and was continuing to exercise the authority of that office conferred upon him by law. Defendant's entrance into office was pursuant to the certificate of election issued to him by the county election board of McClain county November 6, 1914. The statute, as we construe it, makes the filing of supplemental pleadings a matter of discretion with the trial court. This discretion was exercised in favor of the plaintiff, by permitting him to file the supplemental petition. In Smith v. Smith, 22 Kan. 699, in an opinion by Judge Brewer, the application for leave to file a supplemental petition was denied, and the question presented was whether reversible error had been committed. It is said in the opinion:
"We do not understand that a party may commence suit before a cause of action accrues, and then, after it accrues, as a matter of right, file a supplemental petition alleging the facts showing this. A party may not sue on a note two months before it matures, and then upon maturity demand, as a right, the filing of a supplemental petition showing the maturity. We do not mean that a court may not allow this, or that it may never be done; but it is not a matter of right."
In State ex rel. Dawson v. Railroad Companies, 85 Kan. 649, 118 P. 872, it was urged that the action had been prematurely brought, for the reason that the defendants had 87 days remaining in which to comply with the order in question, and hence it was impossible for them to have already failed to obey. It was held that the allegations *Page 468 of the petition fairly showed a present determination not to perform, and that the defendants expressed no willingness to obey the order when sued, but contested its validity, and under the circumstances the action was not premature. It was said that the 90 days allowed by the statute for compliance with the order of the board of railroad commissioners —
"* * * has now long since passed, and the defendants still refuse performance, and undertake to justify their course by the contention that the order is invalid."
And, further, that:
"A peremptory writ commanding such compliance at this time ought not to be withheld on the ground that, when the matter was first brought to the attention of the court, it was still possible for the defendants to obey the order within the statutory period. Even an ordinary civil action brought before the plaintiff's right has fully matured may be proceeded with, in the discretion of the court, upon the filing of a supplemental pleading (Smith v. Smith, 22 Kan. 699, 703; Kingv. Hyatt, 51 Kan. 504, 32 P. 1105 [37 Am. St. Rep. 304]), and an action for damages for breach of contract may be maintained before the arrival of the time for its performance where its obligation is denied. (Caley v. Mills, 79 Kan. 418, 100 P. 69)."
In Brown v. Stuart, 90 Kan. 302, 133 P. 725, it was held to be wholly within the sound discretion of the court to permit the filing, of a supplemental petition; while in Atkinson v.Kirkpatrick, 90 Kan. 515, 135 P. 579, citing Howard v.Johnston, 82 N.Y. 271, it was said that the provision of the Code allowing supplemental pleadings authorizes the court to permit a defendant to set up a set-off or counterclaim based upon facts arising since the filing of the original petition. After citing the statute of that state permitting the filing of supplemental pleadings, *Page 469 the court, in Halfmoon Bridge Co. v. Canal Board, 213 N.Y. 160,107 N.E. 344, held that the trial court had a discretion to permit or refuse a supplemental pleading, but that such discretion must be exercised reasonably, and not capriciously or willfully. In Jensen v. Dorr, 159 Cal. 742, 116 P. 553, it was held to be an abuse of discretion to refuse leave to defendant to set up by supplemental answer the bankruptcy discharge obtained subsequent to the commencement of the action as a bar to any personal judgment, where proper application was made therefor within a reasonable time. Other cases bearing upon the question at issue are: Cleveland, etc., R. Co. v.Hadley, 179 Ind. 429, 101 N.E. 473, 45 L. R. A. (N. S.) 796;Milliken v. McGarrah et al., 164 App. Div. 110, 149 N.Y. Supp. 484; Henry v. Montezuma W. L. Co., 55 Colo. 182, 133 P. 747; Gribben v. Clement, 141 Iowa, 144, 119 N.W. 596, 133 Am. St. Rep. 157.
The statute authorizing the filing of supplemental petitions has been construed and given effect by this court in Wade v.Gould, 8 Okla. 690, 59 P. 1; Reynolds v. Hill, 28 Okla. 533,114 P. 1108; Prince v. Gosnell, 149 P. 1162. Our statute permitting amendments is very broad, and that permitting the filing of supplemental pleadings, it seems, vests in the trial court a full discretion in the matter of filing a supplemental petition, and leaves to the court the authority to permit the same to be done, upon such terms as to costs as the court may prescribe. In the case at bar the supplemental petition brought into the case no fact not known to the defendant. Indeed, at every stage of the proceedings, he had urged the precise objection that was met by the supplemental pleading. The trial was begun on March 25th, or almost three months after defendant had qualified and assumed the duties of *Page 470 the office. The court had already acquired jurisdiction of the action, though the original petition was defective. There was no change of parties, the subject-matter remained the same, and the object of the proceeding was the same. State ex rel. Woodv. Baker, 38 Wis. 71; State ex rel. Rose et al. v. Job et al., 205 Mo. 1, 103 S.W. 493; Hunnicutt v. State ex rel. Witt, 75 Tex. 233, 12 S.W. 106.
I believe the majority opinion of this court is in conflict with both the spirit and letter of section 6005, Rev. Laws 1910; for it certainly cannot be said that by reason of the action of the trial court in permitting the supplemental petition to be filed a miscarriage of justice resulted, or that in doing so the trial court violated a constitutional or statutory right of the defendant. This statue, and section 4791, providing that errors or defects in the pleadings or proceedings, not affecting the substantial rights of the adverse party, should furnish no grounds for reversal on account of such error, were intended to prevent the reversal of judgments upon mere technicalities, and to give regard to the merits of a controversy. The purpose of the former provision of the statute is recognized by the majority opinion, but it is said, in effect that because the court refused to allow the defendant a reasonable time to answer the supplemental petition, and to prepare for trial, the court would not be justified in applying the statute. That the court may or may not have committed an error in ruling the defendant to answer on the following day, presents another and different assignment of error from that under consideration. The point I urge is that, upon the record, no error or abuse of discretion was committed by the trial court in permitting the filing of the supplemental petition. *Page 471
The opinion takes no account of the former decision of the court in Lewis v. Bandy, 45 Okla. 45, 144 P. 624, where it is said in the syllabus:
"Where the original petition alleges an intent upon the part of defendant to usurp the duties and functions of a particular office, it is not error for the court to permit an amendment to allege that such usurpation had, in fact, occurred."
The statement of the case is somewhat involved, though it appears that the action was begun November 20, 1912, and we may fairly assume from the statement in the syllabus and from the law fixing the time that the term of office of county commissioners shall begin that the "amendment" was filed after the defendant had entered upon the discharge of the duties of his office. In such circumstances a supplemental, and not an amended, petition would have been the proper pleading, though the point does not appear to have been made.
I am, for the reasons stated, unable to concur in the opinion of the court.