Report of Cases Determined in the Supreme Court and Court of Appeals of the State of New Mexico Volume 25 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1920 edition. Excerpt: ...stated a cause of action, upon his right to have the defendant answer it and proceed to trial, and for these reasons refused to file an amended complaint. He was adjudged in default for failing to file an amended complaint within the time so fixed by the court, and his complaint was dismissed. No point is made that the complaint failed to state a good cause of action, omitting the parts stricken by the court s order. The sole question presented for our determination here is: Can the court, after striking out a part of a complaint, require the plaintiff to file an amended complaint, and, in case of the plaintiff s refusal so to do, dismiss the action, although, omitting the stricken part, the complaint states a cause of action? Our procedure in such case is governed by section _ 4136, Codification of 1915, which reads as follows: When a complaint, answer or reply shall be adjudged insufiicient in whole or in part upon demurrer, or the whole or some part thereof stricken out, on motion the proper party may file a further like pleading within such time as the court shall direct, and in default thereof, the court shall proceed with the cause in the same manner as if no such original pleading had been filed." The question is raised in this jurisdiction for the first time. The section above quoted is taken from Missouri (section 2066, Rev. Stat. 1889; Bremen Mining Co. v. Bremen, 13 N. M._ 111, 79_Pac. 806), and the Supreme Court of that state in Munford v. Keet, 154 Mo. 36, 55 S. W. 271, in an exhaustive opinion, has construed and applied this statute. The question arose in that case in this wise: The defendant had pleaded several defenses, a part of them being stricken as insufficient, on plaintiff s motion....