Ross v. Flynn

WASTE, P. J.

The plaintiff has appealed from a judgment in its own favor, seeking a review of an order of the lower court striking its amended complaint from the files, and directing the entry of judgment as prayed for in the original complaint.

[1]

The plaintiff first filed a complaint in claim and delivery and the defendants answered separately. Thereafter the plaintiff gave notice of motion for permission to file an amended complaint changing its cause of action to one in conversion, and praying for damages therefor. On the hearing the court, over the objection of the defendants, granted the motion. Counsel for the respective parties then stipulated that the answers on file he considered as answers to the complaint as amended, and on the issues thus presented the action was tried. Both oral and documentary

[403]

evidence was introduced in support of the allegations of the amended complaint, and the cause was submitted for decision. Thereupon the court, by an order entered on the minutes, directed that judgment be entered in favor of the plaintiff.

Before any findings were filed, and judgment thereon entered, the court, of its. own motion, and without notice to the plaintiff, struck the amended complaint from the files and ordered the cause to stand submitted upon the original complaint and answers thereto. Judgment was thereupon ordered, and subsequently entered, for plaintiff, for the return of the property, or, in ease delivery could not be had, for its value, found to be the sum of $1,242. No damages were awarded for the detention.

The action of the lower court was clearly erroneous. Whether or not it was wrong in permitting. the amended complaint to be filed in the first instance does not enter as an element in considering the question.

[2]

Wlien the amended complaint was filed, in pursuance of the permission granted by the trial court, the original complaint in claim and delivery ceased to be the complaint in the case, and the action became strictly one in. conversion.

(Kelly