The outcome of this cause, in my opinion, must be determined by an interpretation of § 1-906, Oregon Code 1930, which states the circumstances under which pleadings may be amended. It is well to remind ourselves at the outset that service upon the defendant (appellant) was obtained in another state — California. It was substituted service in supposed compliance with § 1-508, Oregon Code 1930. Under it no personal judgment could have been entered against the defendant in the absence of a personal appearance by him: § 7-105, Oregon Code 1930. Promptly after the service had been made the defendant challenged it, contending that neither § 1-506 nor § 6-111, Oregon Code 1930, which delineate the circumstances under which substituted service can be made, authorized the service which was actually made. The motion was denied, but it is believed that it should have been allowed; and the fact that the plaintiff does not now contend that those sections authorized the *Page 323 service, but relies upon the defendant's subsequent appearance, is a strong indication that the belief just expressed is not a mistaken one.
The complaint, which was filed in Multnomah county, sought nothing more at the time of the defendant's appearance than an equitable attachment of four Portland lots. It sought no personal judgment. It averred that the plaintiff had instituted an action at law against the defendant in Clackamas county; that the defendant owned the property just mentioned; and that he planned to dispose of it for the purpose of defrauding the plaintiff before the action could be prosecuted to judgment. The prayer follows:
"Plaintiff prays for a decree of this court restraining and enjoining the defendant, his successors and assigns, from selling or conveying or otherwise disposing of said real property or any part thereof pending the final determination of said action at law and awarding to plaintiff such other and further relief as to the court may seem equitable."
The pleading did not mention the nature of the plaintiff's claim nor its amount except so far as was indicated by a copy of the complaint in the law action which accompanied the pleading as an exhibit. That complaint, in the usual form of a personal injury action, averred that the negligence of the defendant and one Neil Stewart was responsible for the injury to the plaintiff which is mentioned in the decision of the majority. It demanded judgment against them in the sum of $35,000. The majority agree that the court had no power to grant any of the relief which the plaintiff sought in the equitable attachment suit. They point out that an impounding of his property was not authorized by our laws. While the complaint was in that form the defendant made his appearance, and then — but not *Page 324 until then — the plaintiff made the amendments which are now under consideration. They infused into the equity complaint the averments of the law action. At this point the plaintiff dismissed the personal injury action which he had filed in Clackamas county. In holding that the complaint as amended states a cause of action, the majority disregard totally, as they are bound to do, all of the averments which constituted the complaint in its unamended form, and regard only the new material. They disregard the original averments because those averments state no cause cognizable by our laws. In other words, the complaint in its original form was a nullity. It was only the material borrowed from the tort action that enabled it to amount to a statement of a cause of action. Thus, the pleading was not amended, for it is impossible to amend a nullity. When the averments of the law action were transferred to the sheets upon which the equity suit was written those sheets, for the first time, contained the statement of a valid cause. Thus, after the defendant had appeared, the complaint underwent a complete change; a good cause was substituted for a nullity. He thought that he was appearing in a suit which could not be maintained (and the opinion of the majority justifies his belief), but discovered that for it there was substituted a tort action seeking a personal judgment against him in the sum of $35,000. Although his appearance was in the Multnomah county suit only, he discovered that through the court's ruling he had also appeared in the Clackamas county action, which was accomplished by incorporating the latter into the former.
Section 1-906, Oregon Code 1930, provides:
"The court may, at any time before trial, in furtherance of justice, and upon such terms as may be proper, allow any pleading or proceeding to be amended by *Page 325 adding the name of a party, or other allegation material to the cause. * * *
The majority rely much upon Talbot v. Garretson, 31 Or. 256 (49 P. 978). That decision summarizes its interpretation of the sections of our code pertaining to amendments in the following language:
"The section quoted plainly provides for two classes of amendments, one made before trial and the other after the trial has begun, and before the final submission of the case. In the former, no limitation is placed upon the power of the court to allow an amendment except that it must be `in furtherance of justice,' and, if a new allegation is added, it must be one `material to the cause'; while in the latter the power is restricted to such amendments as do not substantially change the cause of action or defense.
"It follows, we think, that it is within the power of the trial court to allow, before trial, an amended complaint to be filed containing a new cause of action or suit material to the subject matter of the controversy then before the court. A plaintiff cannot, of course, abandon his original cause of action or suit, and substitute an entirely new and different one, because in such case the new pleading would not be an amendment, but a substitution for the original."
Zimmerle v. Childers, 67 Or. 465 (136 P. 349), York v.Nash, 42 Or. 321 (71 P. 59), and Lieuallen v. Mosgrove, 37 Or. 446 (61 P. 1022), also cited by the majority, add nothing to the rule stated in the above excerpt.
In the instant case the subject matter of the suit, as is clearly indicated by the sections of our code under which the substituted service was made, was the real property. After the amendment the subject matter was a tort. Originally the complaint tendered nothing but an issue of law; as amended it tendered an extensive issue of fact. Originally the plaintiff sought no *Page 326 personal relief against the plaintiff; after the amendment he sought nothing against the real property, but asked for personal judgment against the defendant.
Had the plaintiff sought to amend his equity complaint by adding anything to it material to that cause, that is, his purported right to impound the four city lots in Portland, he certainly would have had a right to do so. Likewise he could have made any amendments (had he possessed the needed facts) necessary to transfer that cause to the right side of the court, if it was not already there: § 6-102, Oregon Code 1930. But nothing contained in the amendments were in any manner necessary to improve his demand that the lots be impounded, or to improve in any manner the prospects of that cause. As indicated by the above-quoted decision, the plaintiff had no right to abandon the suit and to substitute for it an entirely different cause. It is true that in the purported equity suit and in the legal action he was seeking to some extent to gain eventually relief for a single alleged wrong; but, as a matter of fact, the one was merely ancillary to the other. None of these circumstances make the two causes similar. Dean Clark's valuable volume on Code Pleading (page 505), in defining the present status of the rule governing amendments before trial, states that liberality has been achieved by accepting a "broader concept of the cause of action". No comment is necessary, in addition to the foregoing, to make it clear that the two causes were entirely different. Nothing was gained by permitting the amendments except to enter the appearance of the defendant in a cause contrary to his wishes. This was accomplished even after the court had erroneously overruled his motion to vacate the substituted service.
But it is contended that the averments which were added to the equity complaint by the amendments were *Page 327 already parts of that pleading because in its original form the plaintiff attached to it as an exhibit the tort action complaint. The equity complaint referred to the latter as follows: "Every allegation contained in said complaint is true and plaintiff has a good cause of action against the defendants named therein upon the cause of action therein alleged. The plaintiff hereby adopts as a part of this complaint each and every allegation contained in said complaint." If all of the averments of the tort action complaint were a part of the equity suit complaint, then the two causes were unnecessary; one would have sufficed. The prayer of the equity suit previously quoted renders it clear that the plaintiff entertained no thought that he had combined the tort action into the suit. It is believed that the tort action complaint was attached to the equity complaint merely for the purpose of supporting the suit by amplifying and making more definite its averments. In other words, he sought to exhibit to the equity judge the fact that he believed he had a claim capable of supporting an equity attachment.
I believe that § 1-906, Oregon Code 1930, did not authorize the amendment which the court permitted. So believing, the complaint reverts to its former condition, and even the majority do not believe that in its unamended form it stated a cause of suit.
For the foregoing reasons, I dissent.