READER v. FARRISS

READER v. FARRISS
1915 OK 1027
153 P. 678
49 Okla. 459
Case Number: 7575
Decided: 12/07/1915
Supreme Court of Oklahoma

READER
v.
FARRISS.

Syllabus

¶0 1. QUO WARRANTO--Right of Action--Possession of Office. Quo warranto, or a proceeding in the nature thereof, lies only against one who is in the possession and user of the office, and not against one who merely lays claim to the office, or who has never been admitted thereto.
2. PLEADING--"Supplemental Petition"--Right to File. If, on the facts stated in the petition, no cause of action exists against the defendant, and no relief can be granted against him on those facts, subsequently occurring facts cannot be made a part of the plaintiff's case, and he will not be permitted to file a supplemental petition alleging such additional facts to enable him to maintain the action which he has instituted, as the office of a supplemental complaint is not to supply facts which, being necessary to the maintenance of the action, have been omitted from the original complaint, but is to bring into the record new facts which will enlarge or change the kind of relief to which the plaintiff is entitled, and enable the court to render a final judgment upon the facts existing at the time of its rendition.
3. PLEADING--Defective Petition--Cure by Supplemental Petition. If the cause of action which it was sought to enforce by the original petition did not exist at the time when that pleading was filed, it cannot be created, cured, or aided by matters subsequently occurring and set up in a supplemental petition.

Error from District Court, McClain County; W. M. Bowles, Assigned Judge.

Action in the nature of quo warranto by Frank Farriss against Mark Reader. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

See, also, Farriss v. Reader, post,

Sharp, J., dissenting.
Nagle & Reynolds, for plaintiff in error.
Dorset Carter and Franklin & Mauldin, for defendant in error.

KANE, C. J.

¶1 This was an action in the nature of quo warranto, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, for the purpose of trying the title to the office of sheriff of McClain county. The parties hereafter will be designated "plaintiff" and "defendant," respectively, as they appeared below.

¶2 It seems that the parties were rival candidates for the office of sheriff at the election held in November, 1914, and that the certificate of election was issued to the defendant, who was the Socialist candidate; whereupon this quo warranto proceeding was instituted by the plaintiff, who was the Democratic candidate, prior to the time either of the candidates was entitled to or had taken possession of the office. After a motion to strike the petition on the ground that it was prematurely filed was overruled, the defendant continued to save the question raised by his motion to strike, but finally issues, both of law and fact, were joined, and the cause was duly set for trial at a date subsequent to that on which the defendant had taken the oath of office and entered upon the duties of his office as sheriff. Upon the cause being called for trial, the defendant again objected to any further action therein, upon the ground that it was prematurely commenced, whereupon the court, without requiring any previous notice to the defendant or, making any terms as to costs, granted leave to file instanter a supplemental petition alleging, in effect, that subsequent to filing his original petition the defendant entered into actual possession of the office, and is now performing the duties thereof. The trial court also entered an order requiring the defendant to file his answer to the supplemental petition within 24 hours. At the expiration of the 24-hour period the court overruled a motion for a continuance filed by the defendant, and upon his refusal to answer the supplemental petition, ordered that his answer to the original petition be refiled as an answer to the supplemental petition, to all of which the defendant objected and excepted. Upon the trial to the court which immediately followed there was judgment to the effect that neither party was entitled to the office of sheriff, and the same was declared vacant, whereupon both parties instituted separate proceedings in error for the purpose of reviewing the action of the trial court.

¶3 In view of the conclusion reached by the court, the foregoing statement is sufficient to present all questions necessary for a review. The plaintiff in error contends: (1) That the petition was prematurely filed; (2) that, inasmuch as no cause of action existed in favor of the plaintiff, and no relief could be granted on the facts stated in the original petition, the subsequently occurring facts could not have been material to the plaintiff's case, and therefore it was error to permit him to file a supplemental petition setting up such additional facts to enable him to maintain his action. We are of the opinion that both these contentions are well founded. In a very early case, R. v. Whitewell, 5 T. R. 85, Mr. Justice Buller said:

"No instance has been produced where the court has granted an information in nature of quo warranto, where the party against whom it was applied for has not been in actual possession of the office."

¶4 The same may be said today. From that time to this an unbroken line of authorities, both in England and this country, are to the same effect.

¶5 The prevailing modern rule is stated in 17 A. & E. Enc. Pl. & Pr. 407, where the authorities are collected, as follows:

"Quo warranto, or a proceeding in the nature thereof, lies only against one who is in the possession and user of the office, and not against one who merely lays claim to the office, or who has never been admitted thereto."

¶6 This proposition, however, is not seriously disputed by counsel for the plaintiff, but they take their stand more firmly upon the second, and insist that, if the original petition was immaturely filed, then that matter was cured by the filing of the defendant's supplemental petition, which, they say, was pursuant to section 4795, Rev. Laws 1910, which provides:

"Either party may be allowed, on notice, and on such terms, as to costs, as the court may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply."

¶7 In support of this position they cite several Kansas and one Iowa case, which states, it seems, have similar statutes. Williams v. Moorehead et al., 33 Kan. 609,

¶8 Undoubtedly, the general rule governing the right to file supplemental pleadings is as follows:

"If, on the facts stated in the complaint, no cause of action exists against the defendant, and no relief can be granted against him on those facts, subsequently occurring facts cannot be made a part of the plaintiff's case, and he will not be permitted to file a supplemental petition alleging such additional facts to enable him to maintain the action which he has instituted, as the office of a supplemental complaint is not to supply facts which, being necessary to the maintenance of the action, have been omitted from the original complaint, but is to bring into the record new facts which will enlarge or change the kind of relief to which the plaintiff is entitled, and enable the court to render a final judgment upon the facts existing at the time of its rendition."

¶9 This text, which is taken from 21 Enc. Pl. & Pr. 18, is supported by a great array of authorities, among which we find the case of Rogers v. Hodgson, 46 Kan. 276,

"If there had been no default before the commencement of the action, the plaintiff would hardly be entitled to enlarge his action by a supplemental petition setting forth subsequent defaults or grounds of forfeiture which did not exist at the commencement of the suit."

¶10 The quoted portion of the opinion supports the text. This was the prevailing rule in Kansas for a long time prior to the time we adopted our statute governing supplemental pleadings from that state. In another somewhat analogous Kansas case, Brown v. Galena M. & S. Co., 32 Kan. 528,

"The pleadings all relate to the time of the commencement of the suit, the same as if filed at that time, and the rights of the parties are to be determined as they existed when suit was commenced. An amended petition in a suit stands in the place of and as a substitute for the original petition, which is superseded by it, and must be based on the facts and causes of action as they existed at the time the original petition was filed; and, if a right of action did not exist when the original petition was filed, one cannot be created by filing an amended petition."

¶11 It seems perfectly reasonable and logical to us that, if the cause of action which it was sought to enforce by the original petition did not exist at the time that pleading was filed, it cannot be created, cured, or aided by matters subsequently occurring and set up in a supplemental petition. By the terms of the statute the facts alleged must be "material to the case," clearly indicating that they must relate to a cause of action which had previously accrued, and be pertinent to the rights or liabilities of the parties connected with that cause of action. A few cases in addition to those hereinbefore cited holding to this effect are Cont. Const. Co. v. Vinal, 48 Hun 620, 1 N.Y.S. 200 (S. Ct. Gen. T.); Bostwick v. Menck, 4 Daly 68; Farmers' L. & T. Co. v. U.S. Lines Tel. Co., 47 Hun 315; Mitchell v. Taylor, 27 Ore. 377,

¶12 It is probable that if the court had required the plaintiff to give the notice and make reasonable terms as to costs, as required by the statute, and allowed the defendant such a reasonable time to answer the supplemental petition and get ready for trial as to make it appear that his action did not result in a miscarriage of justice, or deprive the defendant of any substantial constitutional or statutory right, the court would be justified in applying the harmless error statute (section 6005, Rev. Laws 1910). But such is not the case, and no useful purpose would be subserved by further speculating on what might have been.

¶13 For the reason stated, the judgment of the court below is reversed, and the cause remanded, with directions to take such further proceedings therein not inconsistent with this opinion as it may deem proper.

¶14 All of the Justices concur, except SHARP, J., who delivers an opinion expressing his views.

¶15 DISSENTBY: SHARP

¶16 DISSENT: SHARP, J.

¶17 (dissenting). With the rule that quo warranto, or a proceeding in the nature thereof, lies only against one who is in the possession and user of the office, and not against one who merely lays claim to the office, or who has never been admitted thereto, I have no disposition to take issue. By section 4919, Rev. Laws 1910, the writ of quo warranto and proceedings by information in the nature of quo warranto are abolished, but it is there provided that the remedies theretofore obtainable in those forms may be had by a civil action, and, as held in Newhouse v. Alexander,

¶18 The right of the plaintiff to file an amended petition in a proceeding in the nature of quo warranto, for the same reason, in proper cases, would afford the right to file supplemental pleadings, as authorized by section 4795, Rev. Laws 1910. The only material change found in the supplemental petition from that contained in the original petition is the allegation that on the 4th day of January, 1915, the defendant qualified and took possession of the office of sheriff, and was continuing to exercise the authority of that office conferred upon him by law. Defendant's entrance into office was pursuant to the certificate of election issued to him by the county election board of McClain county November 6, 1914. The statute, as we construe it, makes the filing of supplemental pleadings a matter of discretion with the trial court. This discretion was exercised in favor of the plaintiff, by permitting him to file the supplemental petition. In Smith v. Smith, 22 Kan. 699, in an opinion by Judge Brewer, the application for leave to file a supplemental petition was denied, and the question presented was whether reversible error had been committed. It is said in the opinion:

"We do not understand that a party may commence suit before a cause of action accrues, and then, after it accrues, as a matter of right, file a supplemental petition alleging the facts showing this. A party may not sue on a note two months before it matures, and then upon, maturity demand, as a right, the filing of a supplemental petition showing the maturity. We do not mean that a court may not allow this, or that it may never be done; but it is not a matter of right."

¶19 In State ex rel. Dawson v. Railroad Companies, 85 Kan. 649,

"* * * has now long since passed, and the defendants still refuse performance, and undertake to justify their course by the contention that the order is invalid."

¶20 And, further, that:

"A peremptory writ commanding such compliance at this time ought not to be withheld on the ground that, when the matter was first brought to the attention of the court, it was still possible for the defendants to obey the order within the statutory period. Even an ordinary civil action brought before the plaintiff's right has fully matured may be proceeded with, in the discretion of the court, upon the filing of a supplemental pleading (Smith v. Smith, 22 Kan. 699, 703; King v. Hyatt, 51 Kan. 504,

¶21 In Brown v. Stuart, 90 Kan. 302,

¶22 The statute authorizing the filing of supplemental petitions has been construed and given effect by this court in Wade v. Gould,

¶23 I believe the majority opinion of this court is in conflict with both the spirit and letter of section 6005, Rev. Laws 1910; for it certainly cannot be said that by reason of the action of the trial court in permitting the supplemental petition to be filed a miscarriage of justice resulted, or that in doing so the trial court violated a constitutional or statutory right of the defendant. This statue, and section 4791, providing that errors or defects in the pleadings or proceedings, not affecting the substantial rights of the adverse party, should furnish no grounds for reversal on account of such error, were intended to prevent the reversal of judgments upon mere technicalities, and to give regard to the merits of a controversy. The purpose of the former provision of the statute is recognized by the majority opinion, but it is said, in effect. that because the court refused to allow the defendant a reasonable time to answer the supplemental petition, and to prepare for trial, the court would not be justified in applying the statute. That the court may or may not have committed an error in ruling the defendant to answer on the following day, presents another and different assignment of error from that under consideration. The point I urge is that, upon the record, no error or abuse of discretion was committed by the trial court in permitting the filing of the supplemental petition.

¶24 The opinion takes no account of the former decision of the court in Lewis v. Bandy,

"Where the original petition alleges an intent upon the part of defendant to usurp the duties and functions of a particular office, it is not error for the court to permit an amendment to allege that such usurpation had, in fact, occurred."

¶25 The statement of the case is somewhat involved, though it appears that the action was begun November 20, 1912, and we may fairly assume from the statement in the syllabus and from the law fixing the time that the term of office of county commissioners shall begin that the "amendment" was filed after the defendant had entered upon the discharge of the duties of his office. In such circumstances a supplemental, and not an amended, petition would have been the proper pleading, though the point does not appear to have been made.

¶26 I am, for the reasons stated, unable to concur in the opinion of the court.