KANE, C. J.
This was an action in the' nature of
quo warranto,
commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, for the purpose of trying the title to the office of sheriff of McClain county. The parties hereafter will be designated “plaintiff” and “defendant,” respectively, as they appeared below.
It seems that the parties were rival candidates for the office of sheriff at the election held in November, 1914, and, that the cerifícate of election was issued to the defendant, who was the Socialist candidate; whereupon this
quo warranto
proceeding was instituted by the plaintiff, who was the Democratic candidate, prior to the time either of the candidates was entitled to or had taken possession of the office. After a motion to strike the petition on the ground that it was prematurely filed was overruled, the defendant continued to save the question raised by his motion to strike, but finally issues, both of law and fact, were joined, and the cause was duly set for trial at a date subsequent to that on which the defendant had taken the oath of office and entered,upon the duties of, his office as sheriff. Upon the cause being called for trial, the defendant again objected to any further action.-therein, .upon the ground that it -was prematurely commenced, whereupon the court, without ,'requiring ..any previous
notice to the defendant or making any terms as to costs, granted leave to file instanter a supplemental petition alleging, in effect, that subsequent to- filing his original petition the defendant entered into actual possession of the office, and is now performing the duties thereof. The trial court also entered an order requiring the defendant to file his answer to the supplemental petition within 24 hours. At the expiration of the 24-hour period the court overruled a motion for a continuance filed by the defendant, and upon his refusal to answer the supplemental petition, ordered that his answer to the original petition be refiled as an answer to the supplemental petition, to all of which the defendant objected and excepted. Upon the trial to the court which immediately followed there was judgment to the effect that neither party was entitled to the office of sheriff, and the same was declared vacant, whereupon both parties instituted separate proceedings in error for the purpose of reviewing the action of the trial court.
In view of the conclusion reached by the court, the foregoing statement is sufficient to present all questions necessary for a review. The plaintiff in error contends: (1) That the petition was prematurely filed; (2) that, inasmuch as no cause of action existed in favor of the plaintiff, and no relief could be granted on the facts stated in the original petition, the subsequently occurring facts could not have been material to the plaintiff’s case, and therefore it was error to permit him to file a supplemental petition setting up such additional facts to enable him to maintain his action. We are of the opinion that both these contentions are well founded. In a very early case,
R. v. Whitewell,
5 T. R. 85, Mr. Justice Buffer said:
“No instance has been produced where the court has granted an information in nature of
quo ivarranto,
where the party against whom it was applied for has not been in actual possession of the office.”
The same may be said today. From that time to this an unbroken line of authorities, both in England and this country, are to the same effect.
The prevailing modern rule is stated in 17 A. & E. Enc. PI. & Pr. 407, where the authorities are collected, as follows:
“Quo warranto,
or a proceeding in the nature thereof, lies only against one who is in the possession and user of the office, and not against one who merely lays claim to the .office, or who has never been admitted thereto.”
This proposition, however, is not seriously disputed by counsel for the plaintiff, but they take their stand more firmly upon the second, and insist that, if the original petition was immaturely filed, then that matter was cured by the filing of the defendant’s supplemental petition, which, they say, was pursuant to section 4795, Rev. Laws 1910, which provides:
“Either party may be allowed, on notice, and on such terms, as to costs, as the court may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply.”
In support of this position they cite several Kansas and one Iowa case, which states, it seems, have similar statutes.
Williams v. Moorehead et al.,
33 Kan. 609, 7 Pac. 226,
Simpson v. Bose,
31 Kan. 227,
Flint v. Dulaney,
37 Kan. 332, 15 Pac. 208;
Gribben v. Clement,
141 Iowa, 144 119 N. W. 596, 133 Am. St. Rep. 157. We have examined these cases, and are of the
opinion that in the Kansas cases cited the statute is properly construed and applied, but we do not believe the cases are in point. There seems to be some confusion in the Iowa cases touching the question. If the case from that state cited by counsel for the defendant can be said to be an authority supporting his contention, it is difficult to reconcile it with
Dennison v. Soper et al.,
33 Iowa, 183, and
Zalesky v. Home ins. Co.,
102 Iowa, 613, 71 N. W. 566, which seem to support a contrary view.
Undoubtedly, the general rule governing the right to file supplemental pleadings is as follows:
“If, on the facts stated in the complaint, no cause of action exists against the defendant, and no relief can be granted against him on those facts, subsequently occurring facts cannot be made a part of the plaintiff’s case, and he will not be permitted to file a supplemental petition alleging such additional facts to enable him to maintain the action which he has instituted, as the office of a supplemental complaint is not to supply facts which, being necessary to the maintenance of the action, have been omitted from the original complaint, but is to bring into the record new facts which will enlarge or change the kind of relief to which the plaintiff is entitled, and enable the court to render a final judgment upon the facts existing at the time of its rendition.”
This text, which is taken from 21 Enc. PI. & Pr. 18, is supported by a great array of authoritiés, among which we find the case of
Rogers v. Hodgson,
46 Kan. 276, 26 Pac. 732. This was an action to recover upon a promissory note and to foreclose a mortgage which was given, to secure the same. By a supplemental petition the plaintiff undertook to allege such defaults as would entitle him to recover 12 per cent, interest from the date of the .mortgage, instead of the 7 per cent, rate stipulated therein,
which the the trial court refused to permit him to file. This ruling was not disturbed on appeal; the Supreme Court holding that the record did not disclose any abuse of discretion on the part of the trial court. Mr.
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KANE, C. J.
This was an action in the' nature of
quo warranto,
commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, for the purpose of trying the title to the office of sheriff of McClain county. The parties hereafter will be designated “plaintiff” and “defendant,” respectively, as they appeared below.
It seems that the parties were rival candidates for the office of sheriff at the election held in November, 1914, and, that the cerifícate of election was issued to the defendant, who was the Socialist candidate; whereupon this
quo warranto
proceeding was instituted by the plaintiff, who was the Democratic candidate, prior to the time either of the candidates was entitled to or had taken possession of the office. After a motion to strike the petition on the ground that it was prematurely filed was overruled, the defendant continued to save the question raised by his motion to strike, but finally issues, both of law and fact, were joined, and the cause was duly set for trial at a date subsequent to that on which the defendant had taken the oath of office and entered,upon the duties of, his office as sheriff. Upon the cause being called for trial, the defendant again objected to any further action.-therein, .upon the ground that it -was prematurely commenced, whereupon the court, without ,'requiring ..any previous
notice to the defendant or making any terms as to costs, granted leave to file instanter a supplemental petition alleging, in effect, that subsequent to- filing his original petition the defendant entered into actual possession of the office, and is now performing the duties thereof. The trial court also entered an order requiring the defendant to file his answer to the supplemental petition within 24 hours. At the expiration of the 24-hour period the court overruled a motion for a continuance filed by the defendant, and upon his refusal to answer the supplemental petition, ordered that his answer to the original petition be refiled as an answer to the supplemental petition, to all of which the defendant objected and excepted. Upon the trial to the court which immediately followed there was judgment to the effect that neither party was entitled to the office of sheriff, and the same was declared vacant, whereupon both parties instituted separate proceedings in error for the purpose of reviewing the action of the trial court.
In view of the conclusion reached by the court, the foregoing statement is sufficient to present all questions necessary for a review. The plaintiff in error contends: (1) That the petition was prematurely filed; (2) that, inasmuch as no cause of action existed in favor of the plaintiff, and no relief could be granted on the facts stated in the original petition, the subsequently occurring facts could not have been material to the plaintiff’s case, and therefore it was error to permit him to file a supplemental petition setting up such additional facts to enable him to maintain his action. We are of the opinion that both these contentions are well founded. In a very early case,
R. v. Whitewell,
5 T. R. 85, Mr. Justice Buffer said:
“No instance has been produced where the court has granted an information in nature of
quo ivarranto,
where the party against whom it was applied for has not been in actual possession of the office.”
The same may be said today. From that time to this an unbroken line of authorities, both in England and this country, are to the same effect.
The prevailing modern rule is stated in 17 A. & E. Enc. PI. & Pr. 407, where the authorities are collected, as follows:
“Quo warranto,
or a proceeding in the nature thereof, lies only against one who is in the possession and user of the office, and not against one who merely lays claim to the .office, or who has never been admitted thereto.”
This proposition, however, is not seriously disputed by counsel for the plaintiff, but they take their stand more firmly upon the second, and insist that, if the original petition was immaturely filed, then that matter was cured by the filing of the defendant’s supplemental petition, which, they say, was pursuant to section 4795, Rev. Laws 1910, which provides:
“Either party may be allowed, on notice, and on such terms, as to costs, as the court may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply.”
In support of this position they cite several Kansas and one Iowa case, which states, it seems, have similar statutes.
Williams v. Moorehead et al.,
33 Kan. 609, 7 Pac. 226,
Simpson v. Bose,
31 Kan. 227,
Flint v. Dulaney,
37 Kan. 332, 15 Pac. 208;
Gribben v. Clement,
141 Iowa, 144 119 N. W. 596, 133 Am. St. Rep. 157. We have examined these cases, and are of the
opinion that in the Kansas cases cited the statute is properly construed and applied, but we do not believe the cases are in point. There seems to be some confusion in the Iowa cases touching the question. If the case from that state cited by counsel for the defendant can be said to be an authority supporting his contention, it is difficult to reconcile it with
Dennison v. Soper et al.,
33 Iowa, 183, and
Zalesky v. Home ins. Co.,
102 Iowa, 613, 71 N. W. 566, which seem to support a contrary view.
Undoubtedly, the general rule governing the right to file supplemental pleadings is as follows:
“If, on the facts stated in the complaint, no cause of action exists against the defendant, and no relief can be granted against him on those facts, subsequently occurring facts cannot be made a part of the plaintiff’s case, and he will not be permitted to file a supplemental petition alleging such additional facts to enable him to maintain the action which he has instituted, as the office of a supplemental complaint is not to supply facts which, being necessary to the maintenance of the action, have been omitted from the original complaint, but is to bring into the record new facts which will enlarge or change the kind of relief to which the plaintiff is entitled, and enable the court to render a final judgment upon the facts existing at the time of its rendition.”
This text, which is taken from 21 Enc. PI. & Pr. 18, is supported by a great array of authoritiés, among which we find the case of
Rogers v. Hodgson,
46 Kan. 276, 26 Pac. 732. This was an action to recover upon a promissory note and to foreclose a mortgage which was given, to secure the same. By a supplemental petition the plaintiff undertook to allege such defaults as would entitle him to recover 12 per cent, interest from the date of the .mortgage, instead of the 7 per cent, rate stipulated therein,
which the the trial court refused to permit him to file. This ruling was not disturbed on appeal; the Supreme Court holding that the record did not disclose any abuse of discretion on the part of the trial court. Mr. Justice Johnson, who delivered the opinion for the court, stated, however, that the trial court would have been warranted in allowing the supplemental petition to be filed, alleging additional defaults which would have entitled the plaintiff to recover a greater amount, but he also further says that:
“If there had been no default before the commencement of the action, the plaintiff would hardly be entitled to enlarge his action by a supplemental petition setting forth subsequent defaults or grounds of forfeiture which did not exist at the commencement of the suit.”
The quoted portion of the opinion supports the text. This was the prevailing rule in Kansas for a long time prior to the time we adopted our statute governing supplemental pleadings from that state. In another somewhat analogous Kansas case,
Brown v. Galina M. & S. Co.,
32 Kan. 528, 4 Pac. 1013, it was held:
“The pleadings all relate to the time of the commencement of the suit, the same as if filed at that time, and the rights of the parties are to be determined as they existed when suit was commenced. An amended petition in a suit stands in the place of and as a substitute for the original petition, which is superseded by it, and must be based on the facts and causes of action as they existed at the time the original petition was filed; and, if a right of action did not exist when the original petition was filed, one cannot be created by filing an amended petition.”
It seems perfectly reasonable and logical to us that, if the cause of action which it was sought to enforce by the original petition did not exist at the time that pleading was filed, it cannot be created, cured, or aided by mat
ters subsequently occurring and set up in a supplemental petition. By the terms of the statute the facts alleged must be “material to the case,” clearly indicating that they must relate to a cause of action which had previously accrued, and be pertinent to the rights or liabilities of the parties connected with that cause of action. A few cases in addition to those hereinbefore cited holding to this effect are
Cont. Const. Co. v. Vinal,
48 Hun. 620, 1 N. Y. Supp. 200 (Sup. Ct. Gen. T.);
Bostwick v. Menck,
4 Daly (N. Y) 68;
Farmers’ L. & T. Co. v. U. S. Lines Tel. Co.,
47 Hun. (N. Y.) 315;
Mitchell v. Taylor,
27 Or. 377, 41 Pac. 119;
Meyer v. Berlandi,
39 Minn. 438, 40 N. W. 513, 1 L. R. A. 777, 12 Am. St. Rep. 663;
Smith v. McGaughey,
13 Tex. 464;
Orton v. Noonan,
29 Wis. 541;
Hill v. Den,
121 Cal. 42, 53 Pac. 642;
Barker v. Prizer.
150 Ind. 4, 48 N. E. 4.
It is probable that if the court had required the plaintiff to give the notice and make reasonable terms as to costs, as required by the statute, and allowed the defendant such a reasonable time to answer the supplemental petition and get ready for trial as to make it appear that h.s action did not result in a miscarriage of justice, or deprive the defendant of any substantial constitutional or statutory right, the court would be justified in applying the harmless error statute (section 6005, Rev. Laws 1910). But such is not the case, and no useful purpose would be subserved by further speculating on what might have been.
For the reason stated, the judgment of the court below is reversed, and the cause remanded, with directions to take such further proceedings therein not inconsistent with this opinion as it may déem proper.
All of the Justices concur, except SHARP, J., Who delivers an opinion expressing his views.