¶1(concurring specially).
¶2While I concur in the disposition made of this- case by the majority, I believe that the grounds of the majority opinion are erroneous.
¶3Our Rules.of Civil Procedure 15(d) and 15(e) read as follows:
15(d) “Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor.”
. 15(e) “All Matters Set Forth In One Pleading. In every complaint, answer, or reply, amendatory or supplemental, the party shall set forth in one entire pleading all matters which, by the rules of pleading, may be set forth in such pleading, and which may be necessáry to the proper determination'" of. the action or defense.”-
¶4By the Laws of 1897, ch. 73, §§ 87 and 89, our legislature adopted from Missouri the following two statutes, the first of which has been superseded by Rule 15(d), supra, (the federal rule adopted verbatim in 1949), and the second of which has been retained in our rules unchanged and has ño counterpart in' the federal rules:
§ 105-612, N.M.S.A. 1929 Comp.:
"Supplemental pleadings. A party may be allowed, on motion, to make a supplemental complaint, answer or reply, alleging facts material to the cause, or praying for any other or different relief, order or judgment. (L. ’97, Ch. 73, § 87; C.L. ’97, § 2685; Code ’15, § 4169.)”
§ 105-614, N.M.S.A. 1929 Comp.:
“Pleadings to be entire. In every complaint, answer or reply, amendatory •or supplemental, the party shall set forth in one entire pleading all matters which, by the rules of pleading, may be set forth in such pleading, and which may be necessary to the proper determination of the action or defense. (L. ’97, Ch. 73, § 89; C.L. ’97, § 2685; Code ’15, § 4171.)”
¶5It will be noted that Rule 15(e).has remained unchanged since its original adoption from the Missouri statute, while Rule 15(d) contains a substantial change from the Missouri statute which it supersedes.
¶6It is my understanding of the majority opinion that Rule 15(e) is asserted to require a supplemental pleading to reallege all of those .allegations of an original pleading upon which the pleader intends to rely, and that a failure to do so constitutes abandonment of the original pleading to the extent of such failure.
¶7The only case in support of this conclusion is Albright v. Albright, 1916, 21 N.M. 606, 157 P. 662, Ann.Cas. 1918E, 542, which case did reach such a conclusion in construing our original statutes adopted from Missouri. However, our original statute on supplemental pleadings taken from Missouri provides for the alleging in a supplemental pleading of any facts material to the cause. Rule 15(d), which supersedes this particular Missouri statute, provides for a supplemental pleading “setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented”, and in its concluding sentence, provides for a response by the adversary party to the supplemental pleading if the court deems it advisable and so orders.
¶8In other words, Rule 15(d) is very different from the original Missouri statute concerning supplemental pleadings, and all of the texts on the federal rules assert that the true office of Rule 15(d) is the presentation of matter related to the claim or defense presented in the original pleading but occurring subsequent to the filing thereof.
¶9In my judgment, the holding in Albright v. Albright, supra, and of the Missouri cases there cited, is based entirely upon the fact that there was no accurate limitation in the original Missouri act of the matters which might be appropriately included in a supplemental pleading; this, for the purpose of clarity, required that all matters in issue should be alleged in the single supplemental pleading. When the Missouri act on supplemental pleadings was superseded by Rule 15(d), limiting supplemental pleadings to matters occurring subsequent to the original pleading, the foundation for the holding in the Albright case was removed and that case is no longer of any relevance in construing Rule 15(d)-.
¶10Finally, Rule 15(e) remains an effective, proper and useful rule without giving it the meaning adopted by the majority. As I read that rule, only these subsequent events may be set forth in such supplemental pleading and, as to such subsequent events, all matters necessary to their proper determination must be alleged in that single supplemental pleading. The case of Howard v. Jennings, 8 Cir., 1944, 141 F.2d 193, would seem authority for this position. Further, under the holding of the majority, I see no distinction between a supplemental pleading and an amended pleading. If this is true, Rule 15(d) is eliminated as a tool of the practicing lawyer and it is meaningless to have it in the books.