Phy v. Edgerton , 40 Idaho 67 ( 1924 )

The question of the sufficiency of the fourth amended complaint in this action was determined adversely to appellants in Phy v. Selby, 35 Idaho 409, 207 P. 1077. On petition for rehearing this court modified the original opinion and remanded the cause to the trial court, ". . . . with authority, within its legal discretion, to entertain and determine a motion by appellants to amend their complaint, should such motion be made within ten days after filing the remittitur, . . . . If such motion shall not be made within such time, the judgment of the trial court will stand affirmed."

Appellants thereafter made timely application to amend their complaint and submitted to the trial court a draft of such amended complaint. The record does not contain any objection made by respondent to this amended complaint, except that it is recited in the order that the matter was argued by counsel for both parties. The application to amend was denied, the reason therefor not appearing in the record. From the order and judgment dismissing the action this appeal is prosecuted. We have examined this amended complaint and are of the opinion that it states a cause of action. In view of this fact and in view of the directions contained in the opinion of this court on rehearing, the question for determination is whether the lower court abused its discretion in refusing the amendment.

When this court remanded this cause to the trial court with directions to entertain and determine a motion to amend the complaint, it would seem that it in substance said to the trial court that if appellants filed an amended complaint which stated a cause of action within the scope and purview of the cause theretofore attempted to be stated, the trial court should not refuse such amended complaint merely because a number of efforts had theretofore been made by appellants to state a cause of action and that considerable time had elapsed during which the cause had been pending. Had this court been of the opinion that the repeated ineffectual attempts to state a cause of action and the long time consumed in so doing constituted a sufficient reason for ending the litigation, it would not have remanded the cause to the lower court, but would have permitted it to rest upon the original opinion. In view of the directions contained in the opinion on rehearing, therefore, we hold that the exercise of the court's discretion was limited to a determination of whether or not, in the cause then pending, the amended complaint stated a cause of action. And since we have concluded that the amended complaint does state a cause of action, it follows that the lower court abused its discretion.

The judgment is reversed, and the cause is remanded with instructions to direct that the amended complaint be filed and that the defendant appear and plead therein within such time as may be fixed.

Costs to appellants.

McCarthy, C.J., and William A. Lee, J., concur.

Petition for rehearing denied.