Barber v. Reynolds
Before: Sawyer
Synopsis
Amended Complaint.—An amended complaint takes the place of the original, and when it is filed the original ceases to perform any further functions as a pleading.
Dissolution of Injunction.—An amended complaint, by leave of the Court or Judge, may be filed without prejudice to an injunction previously granted, and, when thus filed, the injunction will not be dissolved by reason thereof.
Joinder of Plaintiffs in Suit to enforce Liens.—Material men and mechanics who are entitled to a lien on a building, but whose claims are several without any community of interest in the claims themselves, may, under the statute, join as plaintiffs in an equitable action to establish and enforce their liens.
Mechanics’ Lien without Written Contract.—When a person proceeds to erect a building without making any contract for the erection of the same, material men who furnish the materials, and mechanics who labor on the building, in pursuance of section seventeen of the Lien Law of 1862 are entitled to liens without making a written contract, even if the value of the material furnished or labor performed exceeds two hundred dollars.
Injunction to restrain Removal op Building.—Mechanics and material men who perform labor upon and furnish materials for a building erected by the lessee upon a leased lot, and have a lien for the value thereof, are entitled to an injunction to restrain a judgment creditor of the lessee, whose judgment is younger than the lien, from removing the building from the lot when the security is insufficient without such building.
By the Court, Sawyer, J. : Action to enforce a mechanic’s lien. Upon filing the complaint, plaintiffs obtained a preliminary injunction to restrain the removal of the building erected upon leased premises, upon which they claimed a lien. Defendants demurred on various grounds, and gave notice of motion to [501]dissolve the injunction upon the pleadings. Afterwards, but within the time allowed plaintiffs to amend, as of course, by the sixty-seventh section of the Practice Act; they prepared and presented to the Judge an amended complaint, and he thereupon made an order “ that said amended complaint may be filed without prejudice to the said injunction heretofore ordered and issued as aforesaid.” The original motion to dissolve the injunction was afterwards heard and denied, and, subsequently, a motion to vacate the order granting leave to file an amended complaint without prejudice to the injunction, was also denied, and from these orders, refusing to dissolve the injunction and to vacate said order granting leave, the appeal is taken. If the amended complaint is sufficient to sustain the injunction, the motion to dissolve was properly denied, unless the amendment of the complaint proprio vigore worked a dissolution, or entitled defendants to a dissolution. The amended complaint supersedes the original, but there is no dismissal of the action. It simply takes the place of the other, bio new or different action is commenced, and no new cause of action is introduced. There is no change in the identity of the cause of action. That is the same as before, and the commencement of the action dates from the filing of the original complaint and issuing of summons thereon. The change consists merely in more fully setting forth the cause of action defectively alleged in the original complaint. It is the former complaint amended. The old complaint, in the form first filed, ceases, to be the complaint in the case, or to perform any further function, as a pleading, but the amended complaint falls into its place, and performs the same, and not different functions. The identity of the action is in no respect affected. This was so held in the very case cited by appellants. [Jones v. Frost, 28 Cal. 246.) The plaintiffs, after demurrer, and before the trial of the issue of law thereon, were entitled to amend as of course. (Practice Act, Sec. 67.) We know of no good reason upon principle why an amendment may not, by leave of the [502]
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