McDougall v. Roberts

KERRIGAN, J.

The complaint herein presents an action for damages based upon the fraud of defendants, one of whom was plaintiff’s attorney. It recites, in substance, that while plaintiff was sick in body and mind he was induced to transfer for a consideration of less than one hundred thousand dollars real and personal property worth $1,403,060. The complaint was filed about a year and a half after the transaction occurred, and was in three counts. The trial judge sustained defendants’ demurrer to the first and second counts of the second amended complaint, without leave to amend. As to the third count he granted plaintiff leave within fifteen days after notice to apply to the court on five days’ notice for leave to file an amended third count. In accordance with the leave so granted plaintiff served and asked leave to file his third amended complaint. The motion to amend was opposed by defendants upon the ground, among others, that the proposed complaint did not state facts sufficient to constitute a cause of action; that said motion was not made in good faith, and that the allegations of the proposed amended complaint were sham and false.

Upon the hearing defendants offered and the court received in evidence, without objection, the original complaint, the first and second amended complaints, together with the demurrers and answers thereto, and also the deposition of

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plaintiff, which had been taken and was on file. After argument and before decision plaintiff withdrew his proposed complaint and asked for and received permission of the court to submit a further amended pleading. Thereafter plaintiff served an amended pleading, which he styled “third amended complaint, ’ ’ and moved for leave to file it. Defendants objected thereto, urging in opposition all of the objections they had theretofore made to the filing of an amendment. Permission to file the amended document was denied by the court upon the ground, among others, that the proposed complaint did not state facts sufficient to constitute a cause of action, that the alleged cause of action was barred by the statute of limitations, and that said motion was not made in good faith, and that the allegations of the proposed amended complaint were sham and false. Judgment followed for defendants, and plaintiff now takes this appeal.

As grounds for reversal it is urged, first, that the trial court erred in sustaining the demurrers to the second amended complaint and in rendering judgment of dismissal thereof; and, second, the trial court erred in denying plaintiff’s application to file his proposed third amended complaint.