Ahart v. Barrett

57 P.2d 701, 98 Colo. 520, 1936 Colo. LEXIS 325

Opinion

Mr. Chief Justice Campbell

delivered the opinion of the court.

This action was determined on motion of defendants to strike an amended complaint, for that, as said, the amended pleading departed from the original complaint, i;o which a demurrer had been sustained for want of facts. The motion was sustained, and on plaintiff’s election to stand on his amended complaint, judgment of dismissal entered.

Plaintiff assigns error, and says: (1) That the original complaint stated a cause of action and the demurrer thereto’ should have been overruled; (2) that the court should not have considered the original complaint in determining defendants’ motion to strike the amended complaint; (3) that the motion to strike should have been overruled in any event. We think the court rightly adjudged in all particulars.

1. Where, after demurrer to a former pleading has been sustained, as here, and the losing party files an amended pleading, he may not assign error to the ruling holding his original pleading insufficient. Anthony v. Slayden, 27 Colo. 144, 60 Pac. 826.

2. By authority of the same decision, and Denver & R. G. Co. v. Stinemeyer, 59 Colo. 396, 148 Pac. 860, the court properly compared the amended complaint with the original. It enabled the court understandingly to judge of the claimed departure.

3. The amended complaint so clearly departed from the original complaint, as we perceive, that we do not pause to set them forth in contrast. We think the court could not consistently have ruled other than as it did.

The judgment is affirmed.

Me. Justice Hilliard and Me. Justice Young concur.