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33 Colo. 341

Enright v. Midland Sampling & Ore Co.

Supreme Court of Colorado

Decided April 15, 1905

Supreme Court of Colorado · decided 1905-04-15

Louis W. Cunningham, Judge. Appellant, as plaintiff, brought an action against appellee, as defendant, and also The Colorado Midland Terminal Railway Company, to recover possession of a tract of real estate, and damages for tbe alleged wrongful detention thereof. Such proceedings were had after the issues were formulated and a trial on the merits commenced, that plaintiff asked and obtained leave to amend his complaint. Instead of amending, he filed an amended complaint.

Cited by 8 later decisions — most recently October 1927

1 federal appellate · 7 state decisions

Key passage — most relied on by later courts

““The right to amend a complaint when leave is granted for that purpose, does not contemplate that the averments of the original shall be practically restated. When an amended complaint is, in effect, but a repetition of the one which it purports to amend, a motion to strike for that reason is well taken.””

quoted by 1 later decision, including King v. Milner

Relies on Kindel v. Beck & Pauli Lithographing Co. · Hurd v. Smith · Heaton v. Myers

Good law ✅— No negative treatment on recordhow we know

Decided 1905-04-15

View the full empirical analysis of this case →

. Chief Justice Gabbert

¶1delivered the opinion of the court.

¶2By taking leave to, and filing an amended complaint, the plaintiff waived any error committed by the court in sustaining the demurrer to the first amended complaint. — Perrigo G. M. & T. Co. v. Grimes, 2 Colo. 651; Heaton v. Myers, 4 Colo. 59; Hurd v. Smith, 5 Colo. 233; Rockwell v. Holcomb, 3 Colo. App. 1.

¶3. For this reason, the alleged error of the court in sustaining the demurrer cannot be reviewed here. There are exceptions to this rule, but on the questions presented by this ease, it does not fall within any of such exceptions.

¶4The right to amend a complaint when leave is granted for that purpose, does not contemplate that the averments of the original shall be practically restated. When an amended complaint is, in effect, but a repetition of the one which it purports to amend, a motion to strike for that reason is well taken. — Heaton v. Myers, supra.

¶5A comparison of the two amended complaints discloses that the latter was but a repetition of the former. The fact that in the latter all causes of action were withdrawn against the railway company was not a material change, for the reason that the demurrer interposed to the first amended complaint raised no question with respect to the misjoinder of parties defendant. . There was no difference in the two as to the statements of ultimate facts, although evidential matters were given in somewhat different and greater detail. This, however, was not a material change. — Bush v. McMann, 12 Colo. App. 504. The court did not err in sustaining the motion to strike.

¶6The motion of the plaintiff to strike the motion interposed by the defendant was not well taken. We *344do not approve the practice of filing a motion to strike a pleading simultaneously with a demurrer thereto, hut the plaintiff was not prejudiced by that course in this case. The motion of defendant was properly sustained. The plaintiff cannot complain of a proceeding merely irregular, which did not injuriously affect his rights. — Kindel v. Lith. Co., 19 Colo. 310.

¶7The judgment of the district court is affirmed.

¶8Affirmed.

¶9Justices Guntee and Maxwell concur.

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