Dissenting Opinion.
Gavin, J.The opinion of the majority, if I correctly understand it, holds that after demurrer sustained to a complaint, it is discretionary with the court to refuse to permit the filing of an amended complaint which pleads the same facts, causing damage, as were set forth in the original complaint, recovery being sought in tort instead of in contract. With this conclusion I am unable to agree.
The statute, sections 397-399, R. S. 1894 (sections 394-396, R. S. 1881), gives the court a discretion in allowing amendments made after answer, amendments as to parties, to conform the pleadings to proof, etc., but it says that “any pleading may be amended by either party as, of course, .at any time before it is answered.” By section 345, R. S. 1894, set out in the *327majority opinion, the right to amend after demurrer' sustained is given to the party. No control or discretion over this right is bestowed upon the court save as to the terms.
Not a single authority, native or foreign, is cited to sustain the proposition that the amendment contemplated by the statute is ‘ ‘ not such as allows a departure from the original cause of action as a matter of absolute right,” because “this would not be an amendment, but the filing of a new-cause of action,” and that it rests in the discretion of the court to permit such an amendment. The statute seems to me to be plain, clear and explicit. If a limitation of the right thus clearly given is to be interpolated into the statute by the courts, there certainly ought, in my judgment, to be at least both good reason and strong authority therefor. Yet with all due respect to the opinions of my brethren, every reason advanced in the principal opinion ag’ainst permitting this right absolutely is equally cogent against permitting it at any stage of the case. If there be any time when such an amendment is peculiarly appropriate, if ever, it seems to me to be after demurrer sustained when the party is present in court, by his attorney, prepared to see that no advantage is taken of him, when no answers have been filed, and no defense formulated, and when the court has ample power under the statute to adjust all rights as to costs equitably, and see that the defendant has ample opportunity to prepare any defense he may have.
The statement of the law quoted from Works, and approved by the majority, does not, in my judgment, lend any support to the position taken, that the right to make such amendments rests in the discretion of the court. It goes much further and says that it should not be allowed at all. This proposition is, moreover, *328contrary to the law established by numerous decisions of the supreme court, a few of which are referred to later on in this opinion. I may say that an examination of the record and briefs in the case of Boyd v. Caldwell, 95 Ind. 392, discloses that this very section in Works, and the case of Board, etc., v. Decker, 34 Wis. 378, were pressed, upon the attention of the court and it refused to follow them. , How much attention the members of that court gave to that case I do not, of course, know, but the opinion does show that the point was squarely in the case and squarely decided.
It seems to me that since the Legislature has not seen fit to place the allowance of the amendment in the discretion of the court, whenever it appears that the subject matter is such as is permissible and proper in an amendment, then the conclusion follows logically that the party is entitled to make it.
The principal opinion says that none of our cases decide that such an amendment may be made as a matter of right. In answer I would say that the statute gives the right and it should not be taken away, at least without authority.
If this court were to hold that no amendment was allowable which introduced a new and independent cause of action, it would find abundant support abroad at least, although it would run squarely counter to our own supreme court; or if it should decide that there could be no change by amendment from contract to tort, it would also find some support abroad, although again it would be in opposition to our supreme court; but in deciding as if does, that under such a code as ours such a change is allowable after demurrer sustained at the discretion of the trial court, it stands solitary and alone.
The undesirable results which, in the opinion of the majority, would follow my construction of the statute, *329by reason of new parties being thereby brought in, is sufciently guarded against by the statute, which places such amendments within the discretion of the court by its very terms. Section 399, R. S. 1894.
My views as to the merits of this cause are as follows: The court has the power, under the statute, to determine the terms on which the amendment is to be made, but not to deny the right. By the “terms” referred to in the statute, I understand requirements as to payment of costs other than those occasioned by the demurrer, the time in which the amendment is to be made, notice of the amendment, or other collateral matters connected with the amendment.
In Ewing v. Patterson, 35 Ind. 326, it was held that this right of amendment after demurrer sustained was absolute and not discretionary. The addition to the statute of the clause authorizing the court to prescribe the terms does not alter the statute as to the point under consideration.
In Bliss on Code Pleading, section 428, it is said: “Without referring specifically to the statutes of the different States, they all provide or imply a right to amend after a demurrer without leave of court, for the purpose of correcting the error which is the subject of the demurrer.”
Where the amendment is made or proposed on trial or after answer filed, then it rests within the sound discretion of the court to grant or refuse permission to make it. R. S. 1894, section 397.
If, however, the amendment be such as is in itself improper, then the court might rightfully and should refuse to permit it to be made, not in the exercise of a discretion, but in the enforcement of a legal right of the opposite party. Counsel for appellee contend that the amendment was not proper because it changed the ac*330tion from one ex contractu to one ex delicto, and therefore changed the whole theory of the case and presented a new and different case. There are authorities sustaining this view. Board, etc., v. Decker, supra; Carpenter v. Gookin, 2 Vt. 495.
In the note to Bliss on Code Pleading, section 430, it is said of this Wisconsin case: “It is believed, however, that in most of the code States this amendment would be permitted.”
In Ramirez v. Murray, 5 Cal. 222, such an amendment was decided improper, but it was made after trial and verdict.
In Falkner v. Iams, 5 Ind. 200, it was also declared inadmissible under the old code, which authorized only amendments “which do not change the form of the action,” the decision being based upon that express provision, which has not been in the code since 1852.
In Boyd, v. Caldwell, 95 Ind. 392, just such an amendment as was here proposed was held permissible. The weight of authority in other States supports this position.
In Brown v. Leigh, 49 N. Y. 78, the conflicting New York cases are reviewed and the conclusion reached that a complaint may be amended so as to change the cause of action from one class to another, even though they were so different as that they could not properly be joined in the same complaint, when the summons continued appropriate.
An amendment changing the complaint from contract to tort was allowed in Chapman v. Webb, 6 How. Pr. 390; Eighmie v. Taylor, 39 Hun, 366. Fromtort to contract in Hopf v. U. S. Baking Co., 48 N. Y. St. Rep. 729; Culp v. Steere, 47 Kan. 746.
It must be borne in mind that the views here ex-, pressed relate simply to the question presented by the *331case in hand where it arises on the amendment proposed after demurrer sustained. Counsel cite a number of cases wherein it is said that an amendment should not be allowed which changes the cause of action and presents a new one. Lewark v. Carter, 117 Ind. 206; Reeder v. Sayre, 70 N. Y. 180. These statements are made with reference to amendments proposed on or after trial.
In Kiphart v. Brennemen, 25 Ind. 152, it was asked in the circuit court to amend a complaint filed before a justice so as to bring the case within his jurisdiction, the original showing a cause of action without his jurisdiction, thus presenting a question altogether different from that we are considering. This it was decided could not be done on appeal.
In Indianapolis, etc., R. R. Co. v. Cobb, 64 Ill. 128, the propriety of permitting the amendment is not disputed, but it is simply held that when the statute of limitations is pleaded to an amended complaint setting up a new and different cause of action the statute runs to the time of filing the amended pleading and is not to stop with the commencement of the original action. Our own cases are to the same effect. Blake v. Minkner, 136 Ind. 418; Chicago, etc., R. R. Co. v. Bills, 118 Ind. 221; School Town of Monticello v. Grant, 104 Ind. 168; Shirk, Exr., v. Coyle, 2 Ind. App. 354. These cases, ho'wever, recognize, and others authorize, amendments introducing new causes of action at proper times under proper circumstances. Burr v. Mendenhall, 49 Ind. 496; Darrell v. Hilligoss, etc., Gravel Road Co., 90 Ind. 264; Levy v. Chittenden, 120 Ind. 37; Blake v. Minkner, supra.
If the counsel were sustained in their assumption that the cause of action asserted by the amended complaint was upon its face barred by the statute of limitations, *332then there would he little difficulty in regarding the refusal to permit the filing of the amended pleading as harmless in any event, but this does not appear. In order to make a complaint bad upon its face, as showing the cause of action to be barred by the statute, it must appear that none of the exceptions provided for in the statute apply. There are several exceptions, notably nonresidence and concealment, which prevent the statute from running. These not being negatived, an answer setting up the statute of limitations v/as necessary to make it available. Potter v. Smith, 36 Ind. 231; Hogan v. Robinson, 94 Ind. 138; Medsker v. Pogue, 1 Ind. App. 197.
Filed May 16, 1895.It is not necessary to decide, because not properly before the court, whether or not when the statute is pleaded this complaint is to be regarded as setting up a new and independent cause of action, or as being a restatement of the matters counted upon in the original pleading.
The appellee invokes the aid of that doctrine by which a party having two remedies and electing to pursue one is usually held bound by his election. Here, under the holding of the court, the appellant did not have two remedies from which to choose.
I am of the opinion that the judgment should be reversed.