shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
'(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
'(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.'
The office of a supplemental pleading is not to set forth newly discovered evidence which would justify a new trial, it is rather to bring into the record new facts which will enlarge or change the kind of relief to which a plaintiff is entitled. Southern Pacific Co. v. Conway, 9th Cir., 115 F.2d 746.
A new cause of action differing from that which formed the basis of the original complaint cannot be introduced into the case by a supplemental pleading. Fundamentally a 'supplemental bill' is a mere addition or continuation of the original bill or complaint. Jurisdiction to entertain a supplemental bill can only be granted where the bill is designed to aid or effectuate a prior decree or to seek relief not of a different kind or on a different principle but along the same lines as the original bill. Berssenbrugge et al. v. Luce Mfg. Co., D.C., 30 F.Supp. 191; Dugas v. American Surety Co., 300 U.S. 414, 57 S. Ct. 515, 81 L. Ed. 720; Federal Rules of Civil Procedure, Rule 15(d), 28 U.S.C.A.following section 723c.
The granting of a partial new trial in the instant case for the reasons presented by the plaintiff would not enlarge or change the kind of relief to which the plaintiff would be entitled. The same relief would be demanded but on an entirely different theory or legal principle. It would not be proper under the circumstances to permit the plaintiff to file a supplemental bill of complaint.
It has not been stated in the motion for partial new trial whether it is claimed the defendant failed and neglected to maintain the plaintiff in the station of life to which he had been previously accustomed, and that he was unable to so maintain himself from the rent, income, issues and profits of said real estate in which he retained a life estate before the bill of complaint was filed on October 30, 1944, or at a period subsequent to said date.
It is the duty of the Court to render justice and consider whether the plaintiff should be required to file a new action, instead of permitting an amendment to the original bill of complaint which would base the cause of action upon an entirely different theory than that upon which the issues have been tried by the Court. Since this proceeding is in equity, it would appear to me unnecessary and undesirable, in view of the limited financial resources of the plaintiff, to require the filing of a new bill of complaint if such can be avoided on the basis of sound legal principles.
If the plaintiff has a cause of action on any theory of law, he should be given leave to assert it, and leave shall be freely given to amend pleadings when justice so requires. Blake v. Clyde Porcelain Steel Corp., D.C., 7 F.R.D. 768.
The amendment of a pleading should be allowed unless there is a substantial change in the cause of action as originally alleged. The term 'cause of action' refers to the specified conduct of the defendant upon which the plaintiff bases his claim for relief. The use of the words 'claim' or 'claim for relief' in place of the term 'cause of action' refer to the specified conduct of the defendant upon which the plaintiff tries to enforce his claim. An amendment should be allowed where the factual situation is not changed even though a different theory of recovery is presented. White v. Holland Furnace Co., D.C., 31 F.Supp. 32, 33.
I am aware amendments to pleadings should be allowed with great liberality at any stage of the case unless to so permit would be violative of settled law, or prejudice the rights of the opposing party. Justice should not be defeated through a mere mistake as to the form of the action. I do not believe justice requires leave being granted to amend pleadings after the issues raised have been adjudicated by the Court. There is not a mistake in the form of action in this case. The legal questions raised in the pleadings have been adjudicated on the basis of the testimony presented.
In the trial of this proceeding the plaintiff offered no testimony that he was unable to maintain himself from the income, rents, issues or profits from the real estate in accordance with the position in life to which he had been previously accustomed. I can appreciate this was not done for the reason that his counsel had not set forth allegations in the original bill of complaint which would have justified or permitted the introduction of testimony to establish this fact. The Court in its findings of fact made reference to this situation for the reason that it was realized that such responsibility existed on the part of the defendant if the plaintiff was unable to properly and sufficiently maintain himself.
The tests to be applied when the question arises whether an amended complaint should be permitted are -- would a judgment bar any further action on either, does the same measure of damages support both, is the same defense open in each, and is the same measure of proof required.
The judgment which the Court has rendered would not bar further action by the plaintiff against the defendant since an entirely new legal theory is presented which could require the production of testimony which is not in the record. The same measure of damages or relief to be granted could materially vary when consideration is given to the legal theory now presented. The same defense is definitely not available as compared with that presented at the time of trial, and the same measure of proof would not necessarily be required.
It would be improper to grant plaintiff the right to file an amended bill of complaint, and I have heretofore stated in this opinion it would be irregular to permit the filing of a supplemental bill of complaint.
Search as I have, there does not appear to be any sound reason which will relieve the plaintiff from the necessity of filing a new complaint in support of the basic claim for relief which he now presents.
The refusal of the motion for partial new trial cannot in any way prejudice the right of the plaintiff to file a new action against the defendant which would relate to any theory of law or factual situation not disposed of in this proceeding.
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