Opinion
No. 849-KA.
August 19, 1926.
Wm. L. Paul, of Ketchikan, for plaintiff.
H.L. Faulkner, of Juneau, for defendant.
I do not think, from reading the third amended complaint, there is more than one cause of action alleged therein. It does not appear to me that there is a substantial change in the cause of action. The present complaint simply states in a different form what was sought to be stated in the original complaint. The true rule by which it may be determined whether a new cause of action is stated, or whether no substantial change has been made, is: Did the plaintiff so state his cause of action originally as to show he had a right to receive what he subsequently claimed? In other words, in this case, if the original cause of action showed that there was a debt due plaintiff from the defendants, and the present third amended complaint also showed that there was a debt due plaintiff from the defendants, there would be no substantial change in the cause of action, although there might be a change, without changing the cause of action substantially in the amount prayed for, or in the nature of the relief sought.
It is true that in the original complaint the plaintiff prayed for an injunction against the defendants taking and disposing of the boat mentioned in the contract; but, in this third amended complaint, plaintiff merely prays for judgment for the amount of fish delivered under the contract, and omits to pray for the issuance of an injunction and the delivery of the boat to him. The mere fact that the third amended complaint omits to pray for some of the relief asked in the original complaint does not in any way affect the cause of action. What is prayed for in the complaint does not afford a criterion for determining the nature of the cause of action. Miller v. Thompson, 40 Nev. 35, 160 P. 775; Cassinella v. Allen, 168 Cal. 677, 144 P. 746.
In view of the invariable rule that amendments of this nature should be liberally allowed, I think that the motion should be denied; and it is so ordered. The usual time to further plead is granted.