ON PETITION FOR REHEARING A petition for rehearing has been filed herein. We held in this case that the court's order dismissing plaintiffs' petition was not erroneous for the reason that there was nothing else to do in view of the fact, mainly, that (1) the ruling sustaining demurrers to the petition had been acquiesced in, and (2) because the trial court did not err in refusing, in its discretion, the filing of an amendment which was offered out of time. The rules of law cited in our opinion, in support of our decision, have not been attacked, and we think, cannot be, but counsel seem to think that we misconceived some of the facts, namely, the scope of the court's ruling, or the reasons given therefor. Thus it is said that we erred in assuming that when the court sustained the demurrers filed in the case in the language set out in the original opinion, it thereby held that the petition in the case failed to state a cause of action. In the ordinary case, of course, *Page 285 when a demurrer is sustained to a petition, on the ground that it fails to state a cause of action, the plaintiff must either stand upon his petition, and appeal, or he must file an amendment, and that within the time given by the court. If he fails to take either course, the necessary effect will be that he is out of the case. Counsel, in saying that we erred as above mentioned, evidently believe that no such result as just stated followed in the case at bar, and they contend that they remained in the case as plaintiffs, even as against the demurrants, and that the ruling of the court had no effect on their status. We think that counsel have mistaken the effect of the ruling of the trial court. Their contention, if correct, would virtually mean that the ruling of the court was an idle gesture. That cannot be so. When the court held that, under the allegations of the petition, the plaintiffs had no right to foreclose the mortgage in suit — i.e., had no standing as plaintiffs, it necessarily held that the plaintiffs' petition did not state facts sufficient to constitute a cause of action. It is not enough that a plaintiff alleges a cause of action existing in favor of some one; he must show that it exists in favor of himself. 49 C.J. 140. If it does not, all other points or issues are wholly immaterial, so far as he is concerned. In the case of The Central Ohio R.R. Co., et al. v. City of Belaire, 67 Ohio St. 297, the court said:
"To enable a plaintiff to recover, his petition must disclose a cause of action in favor of the plaintiff and against the defendant; and if the petition discloses a good cause of action against the defendant, but at the same time shows that the cause of action is not in favor of the plaintiff, the petition is demurrable on the ground that it does not state facts sufficient to constitute a cause of action. Buckingham v. Buckingham, 36 Ohio St. 68; Zinn v. Baxter, 65 Ohio St. 341, 369."
In the case of Higgins v. Swygman, 194 Ind. 1, 7,141 N.E. 788, the court said: *Page 286
"However clearly a complaint or petition may show the existence of a right of action in favor of somebody who did not file it, a demurrer under the fifth subdivision of Sec. 344, Burn. 1914 (Acts 1911 p. 415 Sec. 2) should be sustained to it, if it fails to state a cause of action in favor of the party or parties in whose name it is filed," (citing many cases.)
The fifth subdivision mentioned provides that a demurrer may be filed to a petition for the reason "that the complaint does not state facts sufficient to constitute a cause of action." To the same effect as the foregoing decisions is the case of Asplund v. Hannett,31 N.M. 641, 642, 249 P. 1074, 58 A.L.R. 573. And we cannot see how the trial court can be said to have construed the situation differently. The plaintiffs sought to foreclose. They claimed the right to do so, and sought to displace the Wyoming Trust and Savings Bank. The court held that the petition did not disclose facts giving the plaintiffs the right to displace the bank. In other words, it held that the plaintiffs had no standing in court as plaintiffs, and that is the only standing they had. Hence it is inconceivable how the effect of the ruling of the court could be different from that in any other case in which the court holds that the petition fails to state a cause of action. Whether the court was right or not is not the point. The plaintiffs acquiesced in that ruling, and must necessarily bear the consequences. Nor can we see how it can be said that they are thus put out of court on a technicality. A different holding would lead to chaos in procedure.
Counsel further complain of our holding that the trial court did not abuse its discretion in letting the amendatory petition be filed out of time, and contend that no such question was in the case. They say:
"This court in its opinion seems to turn our case upon a question of discretion vested in the trial court to deny the plaintiffs to file a supplemental petition. Strangely enough this question finds its origin in the appellate court rather *Page 287 than in the trial court. At no time, either in court or out of court, did the chancellor ever indicate that the supplemental petition was refused as a matter of discretion because it was filed too late."
It was vigorously enough pointed out in the briefs of the defendants on the original hearing herein that the amendatory and supplemental petition of plaintiffs was filed out of time, and we could not escape dealing with that point, even had we desired to do so. It is true that the court, when entering its ruling, did not specifically refer to it. But it does not follow that its decision was not, at least partially, based thereon. In fact it is hard to believe that the court did not have the point in mind, when it had fixed a definite time for filing amendments, and had extended that time to a definite date. But even if the contrary is true, that could not affect the law of the case. Counsel cannot be unaware of the familiar rule that "where a judgment or order is correct, it will not be reversed on appeal because the trial court has based its decision on insufficient or erroneous reasons or grounds." 4 C.J. 663. The assignment of error in this connection is that the court erred in not permitting the amendatory and supplemental petition to be filed. We have held that there is a sufficient reason in law for the ruling of the court. We could not, accordingly, reverse the trial court, even though we should also be of the opinion that the court gave an insufficient or wrong reason for its action, and a review thereof would be useless.
Counsel say that we should have decided the case upon its "merits." Now what do they mean by that? Evidently, that we should have decided that the allegations of their petition and amendatory and supplemental petition are sufficient to show that they have the right to conduct the case as plaintiffs and displace the Wyoming Trust and Savings Bank. But for us to determine that point, it would be clearly necessary to review the decision on the demurrers, and hold that it was wrong, notwithstanding the fact that the plaintiffs acquiesced in it; and it would be necessary to *Page 288 set aside the ruling of the trial court denying the right to file the amendatory and supplemental petition, notwithstanding the fact that it was filed out of time. Hence we are back to the points already discussed, and to do what counsel would have us do would, of course, be violative of every fundamental principle of orderly appellate procedure, making this court the trial court, and relegating the District Court to the rank of a mere commissioner. We cannot do that. Counsel argue that a number of the cases cited in our original opinion were decided on their "merits;" that is to say, were not dismissed. That is true, but under circumstances entirely different from those here presented. In some of them, for instance, the ruling on the demurrer went only to part of the causes of action or defenses. We need not point out the differences in the other cases.
Again, it is said that we should have modified the order of the court dismissing plaintiff's petition, and point out some way by which plaintiffs could receive back their status in the case. But there was nothing to modify, since we found the order to be wholly right. It is true that in some cases, which are reversed, this court will give directions as to what should be done in a future trial, but we do not think that we should, upon the affirmance of an order or judgment, ordinarily at least, point out how the defeated party may come back into the case, or decide whether or not the judgment already rendered is res judicata. These points are clearly not in this case, and may never arise, and our decision thereon would be purely obiter dictum. Coplan v. Eastwood, 33 S.D. 229, 145 N.E. 431, is not to the contrary. There a final order of dismissal had not been entered. As to what course counsel for plaintiffs should adopt in the future should, in the first place, be determined by them, for, as pointed out by themselves, citing Berry v. Barton, 12 Okla. 221, 71 P. 1074, "the attorney is supposed to know the law of his case equally as well as the court." They would have us believe that their clients are to be compared *Page 289 to innocent lambs, and the defendants to a pack of wolves, and that the former are being led to slaughter by the latter. We think that the comparison is hardly fair, for this reason, if no other, that the lambs in this case, if any, had, at least in the person of the senior counsel for plaintiffs, a shepherd, tried and true, fearless and with ample ability to drive off any wolves that might come, as the bar and the courts of this state will gladly attest.
A rehearing is denied.
KIMBALL, Ch. J., and RINER, J., concur.