Ryan v. Old Veteran Mining Co. , 35 Idaho 637 ( 1922 )

McCARTHV, J.

This is an appeal from a judgment of dismissal rendered after the court had sustained a demurrer to the third amended complaint. One of the grounds of demurrer was that the action was barred by the statute of limitations. The transcript contains the third amended complaint, but not the original. It contains the date of filing the original complaint, to wit: September 30, 1919. Respondents move to dismiss the appeal, to strike the transcript, and strike the date of filing the original complaint on the ground that the transcript does not contain a copy of the entire judgment-roll, and that said filing date is not a proper part of the judgment-roll or of the record on appeal.

When an amended complaint is filed, it takes the place of the original, and all subsequent proceedings in the case are based upon the amended pleading. (People v. Hunt, 1 Ida. 433; Warren v. Stoddard, 6 Ida. 692, at 701, 59 Pac. 540; Armstrong v. Henderson, 16 Ida. 566, 102 Pac. 361.) When an amended pleading has been filed and no question has been raised as to the original pleading the latter must not be put in the transcript. (Warren v. Stoddard, supra.) In the present case no question is raised as to the original pleading itself. The only fact in connection with it, which is pertinent to this appeal, is the date of its filing. C. S., see. 7163, requires the appellant to furnish a copy of the judgment-roll, and C. S., sec. 6901, provides that the pleadings are a necessary part of it. These statutes, however, should be given a sensible construction, which will carry out the purpose clearly intended, and not a construction which will put the litigants to much useless trouble and expense. We conclude that, since the amended complaint takes the place of the original, the filing date on the original complaint pertains to the amended complaint, even though it be not indorsed on it, and is a proper part of the judgment-roll. We conclude, further, that this. transcript which contains the amended complaint and the filing date of the original complaint is a substantial compliance with the statute.

The motions to dismiss the appeal and to strike are denied.

Rice, C. J., and Dunn and Lee, JJ., concur.