Harris v. Elliott

Ingraham, J. (dissenting):

This action, as originally commenced, was in the nature of a bill of interpleader, by which the plaintiff sought to have the court determine to whom a fund in his hands belonged. The defendants answered the complaint in that action, and subsequently the plaintiff asked leave to serve a supplemental complaint. This supplemental complaint alleged facts that happened subsequent to the commencement of the action, and alleged an agreement in writing between the parties to the action subsequent to the joinder of issue, and the acts of the plaintiff and the defendants in pursuance of such stipulation or agreement. Ho cause of action different from that alleged in the complaint was sought to be injected into the action. The action, after the service of the supplemental complaint, was still to determine to whom this fund in the hands of the plaintiff belonged, and the cause of action was still the same. Hpon the facts alleged in the complaint, the plaintiff requested adjudgment which would make a different disposition of the fund than that justified by the facts alleged in the original complaint; but the cause of action still was for an adjudication as to the ownership of a fund which by the original complaint, not by the supplemental complaint, was alleged to be in the hands of the plaintiff. Subsequent to the service of this supplemental complaint the defendants demurred to the amended and supplemental complaint on the ground that several causes of action have been improperly united therein.” There was no “ amended and supplemental complaint ” served. There was an original complaint and a supplemental complaint. If this demurrer was sought to apply to the original complaint as supplemented by the facts alleged in the supplemental complaint it should have been so stated. . The right to demur to the original complaint had been lost *575by service of the answer to it, and the office of this supplemental complaint simply was to allege facts which the plaintiff would seek to prove upon the trial, supplementing the facts alleged in the original complaint, and which, in such an action as this, would affect, not the cause of action, but the special relief that a court of equity would give under the circumstances. As to the right to demur to a supplemental complaint standing alone, I know of no provision of the Code or principle of practice which allows one to be interposed. Demurrers are regulated by article 2, title 1 of chapter 6 of the Code. Title 1 of that chapter relates to the complaint, and the complaint there referred to is the original complaint upon which a recovery is sought. Section 481 of the Code prescribes what the complaint must contain. Article 2 relates to demurrers. Section 487 of the Code provides that the only pleading on the part of the defendant is either a demurrer or answer; and by section 488 it is provided that the defendant may demur to the complaint where one or more “ of the following objections thereto appeal- upon the face thereof.” This article will be searched in vain for any provision which either authorizes or recognizes a demurrer to a supplemental pleading. The only provision of the Code which relates to supplemental pleadings is section 544. There it is provided that, upon the •application of either party, he will be permitted to make a supplemental complaint, answer or reply, alleging material facts which ■occurred after his former pleading, or of which he was ignorant when it was made. The section then provides that the party may apply for leave to make a supplemental pleading, either in addition to, or in place of, the former pleading.” The supplemental complaint served in this action was made, not in place of, but in addition to, the former complaint, and thus both complaint and supplemental complaint stood together as alleging the facts upon which the plaintiff claimed to be entitled to the judgment which he demanded. It is unnecessary to determine whether or not a party would have a right to demur to a supplemental pleading which had been allowed by the court in palace ■of the original pleading; but it seems to me quite clear that there is no provision that would justify a demurrer to a supplemental pleading which was in addition to the original pleading. If the facts alleged in the supplemental pleading were improper to be pleaded as *576supplementing the original pleading, the question should he determined by the court when the application for leave to serve such supplemental pleading is made. A supplemental complaint thus served does not set up a new cause of action. It has been again and again held that the cause of action must be alleged in the original pleading, and that it is improper to allow, by way of supplemental pleading, a new cause of action to be alleged. A pleading merely supplemental to one already in existence would necessarily be imperfect as stating a cause of action, and any pleading which is served purely as a supplement to an existing pleading would be demurrable if the demurrer to it were allowed. The subsequent provision of section 544 of the Code makes it clear that where a supplemental pleading was allowed in addition to the original pleading, the right of the party to relief was not to depend upon the supplemental pleading alone, for it .is provided that the right of the adverse party to have a provisional remedy or other proceeding taken in the action vacated or set aside depends upon the case presented by the original and supplemental pleading. Thus, I think that a demurrer to this supplemental pleading, alleging facts in addition to the original complaint was unauthorized by the Code. The proper practice for the defendants to pursue was to proceed with the trial of the case, and if the facts alleged in the supplemental complaint -were not such as would entitle the plaintiff to the particular relief to which he insisted he was entitled on the facts alleged in the supplemental complaint, the court, upon the trial, would grant the proper judgment; but, upon this demurrer, the only judgment that could be given was that the supplemental complaint was inconsistent with the original complaint — in which case it should not have been allowed to be served—or did not state facts sufficient to constitute a cause of action, which, if it had, it would not have been a supplemental complaint in addition to the original complaint.

I think, therefore, that the judgment appealed from should be reversed and the demurrer overruled as unauthorized, with leave to the defendants to answer the supplemental complaint upon payment of costs in the court below and in this court.

Judgment affirmed, with costs.