
    Yates vs. French and another.
    Pleading- : Amendment of complaint after answer filed; rule as to answering anew.
    
    1. An answer filed to the original complaint will stand as an answer to the complaint as thereafter amended, unless defendant answers anew.
    2. It seems that if defendant answers anew the amended complaint, his original answer is to he considered as abandoned, and may he stricken from the files, on motion.
    APPEAL from the Circuit Court for Milwaulcee-County.
    Ou commencing this action against French and Milter, plaintiff had certain property of the latter attached; and 
      Miller procured the property to be released from the attachment, by giving an undertaking with sureties as provided by statute. An answer to the original complaint was duly filed, and served February 13, 1869 ; and two days afterward the plaintiff served an amended complaint, differing from the former only in the amount of damages claimed. On the ,16th of April, following, plaintiff notified defendants’ attorneys that he had entered the default of defendants, and, on the second day of the next term (April 27th), would apply to the court for the relief demanded in the complaint. On the 6th of May, plaintiff took an inquest in the cause, before the court and a jury, and had judgment entered in his favor against the defendant Miller for the amount of damages assessed by the jury. Afterward, at the same term, the defendant Miller moved to set aside the judgment for irregularity; one ground for the motion being, that Miller was not in default, but had served his answer, and there was an issue pending between him and plaintiff at the time said judgment was rendered. It appeared from the affidavits used upon the hearing of this motion, that the sureties on Miller’s undertaking had paid the judgment. The court refused to set the judgment aside, and the defendants appealed.
    
      JoTmW. &A. L. Gary, for appellants,
    contended, among other things,' that the plaintiff could not amend, as of course, by increasing the damages demanded, the complaint as thus amended being irregular, because at variance with the summons (City of Fond du Lae v. Bone-steel, 22 Wis. 251); that the answer purporting to be by both defendants was good as an answer of both, although verified only by Frénelo; that it was good as an answer to the amended complaint, and that the payment of the judgment, as it would not prevent a review on appeal or writ of error (Clowes v. Dickenson, 8 Cow. 328 ; Dyett v. Pendleton, id. 325 ; Higbie v. Westlake, 14 N. Y. 281; Erwin v. Lowry, 7 How. (U. S.) 172 ; Merriam v. Haas, 3 Wall. 687; U. 8. v. DasMel, id. 688), so it was no reason why the judgment should not have been vacated.
    
      Peter Yates, respondent,
    in person, contended that the answer, verified by French alone, is not the answer of his co-defendant Miller
      
       (1 Whitt. Pr. [2d ed.] 332, 471); that the complaint was properly amended (1 Yan Santv. PL 364; Merchant v. If. Y. Life Ins. Go., 2 Sandf. 669); that the statute required an answer to the amended complaint (E. S., ch. 125, sec. 7); that to set aside the final judgment, only, leaving the entry of default and the inquest, would be of no substantial benefit; and that the relief should not be -granted after a voluntary payment of the judgment by the sureties.
    
      
      The verification by French simply states “that lie is one of the defendants named in-and who makes the foregoing answer, and that said answer is true of his own knowledge.” The respondent contends that the verification should have stated expressly that the party making it was 11 acquainted with the facts ” of the case. R. S., ch. 125, sec. 19.
    
   Dixon, C. J.

The single question is, whether the defendants were required to answer de novo after amendment of the complaint, or were at liberty, if they saw fit, to let their answer to the original complaint stand as their answer to the amended one. The complaint was amended, as of course, under sec. 36, ch. 125, E. S., after the answer was put in, but the matters in issue remained unchanged: Nothing new was set up by the amendment requiring a new or different answer from the one made to the original complaint. The amendment consisted only in changing the ad damnum clause. The amount of damages claimed was increased, but the cause of action was the same in both complaints, and the bill of particulars attached to each, identical. The practice in the English courts is thus7 stated by Mr. Tidd: “ On amending the declaration in the king’s bench, after plea pleaded, the defendant is at liberty to plead de novo, if his case require it, and has two days allowed him for that purpose, after the amendment made and payment of costs. * * * But in the common pleas we have seen the defendant is entitled, in all cases, on amending the declaration, to a new four days’ rale to plead. And in that conrt, after an amendment of a declaration, the defendant is at liberty to plead de novo ; that is, he may do so if he has ocoasion or tjiinlcs proper, but he is not obliged to vary his first defense.” 1 Tidd’s Pr. 708. And the practice in New York, prior to the enactment of the code, was very much the same, though it would seem from Bar stow v. JRandalt, 5 Hill, 556, to have been somewhat unsettled. The practice in the English courts is correctly stated in the latter case to be, to allow a plea de novo in all cases, at the election of the defendant; but the dictum of Judge Coweít which immediately follows, that, upon filing the amended declaration, all subsequent pleadings are considered as in effect stricken out, is wholly unsustained by the text of Mr. Tidd referred to by him. The right of the defendant to plead de novo or not, at his election, implies, if he chooses not to do so, that his plea to the declaration before it is amended shall stand as his plea thereto after amendment, as the above extracts from Mr. Tidd very clearly show the English practice to be. And the learned judge seems also to have mistaken the earlier decisions in his own state upon the subject. In Baltus v. Bayard, 12 Wend. 228, the English practice was precisely followed. The plaintiffs there were allowed to amend upon payment only of the costs of the motion, unless the pleas were withdrawn, or a new defense became necessary in consequence of the amendment, in which case the costs of the pleas were also to be paid. This indicates very plainly that a new plea was not, in "all cases, required, nor in any case, except as the defendant found it necessary or proper by reason of new matter introduced by the amendment, which he wished to controvert or put in issue by his plea. He might, in any case, refuse to plead anew, and in that event his plea already filed was considered as a plea to the amended declaration. His neglect or refusal'to plead anew within the time prescribed was an election on Ms part to have it so considered. On the other hand, his election to plead de novo, which was manifested by.the filing and service of a new plea, was an abandonment of the former plea. The former plea or pleas were thenceforth regarded as in effect stricken out.. They would be stricken from the case on motion. Brown v. Railroad Co., 18 N. Y. 495.

This long-established and reasonable practice of the common law seems equally well suited to the code, wMch contains nothing in conflict with it. In New York we find no decisions made since the adoption of the' code directly involving the question. Those decisions most nearly bearing upon it seem to sanction the common-law practice. Kilts v. Seeder, 10 How. Pr. 270; Union Bank v. Mott, 11 Abb. Pr. 42; S. C., 19 How. Pr. 267. In this state the point has never before been presented. On the whole, we are inclined to adhere to the practice of the English courts of common law as laid down by Mr. Tidd. This we think the safest and the best, and that which must have been intendéd, in the absence of any provision of statute, or rule of court, to the contrary.

It follows from these views that the plaintiff was wrong in taking judgment upon the amended complaint as for want of an answer. The defendants, not having elected to answer over within the time prescribed by law, their answer to the original complaint was an, answer to the amended one; and. the issues thus joined should have been tried as in other cases. The court erred in refusing defendants’ motion to set aside the judgment for irregularity; and the order must be reversed, and the cause remanded for further proceedings according to law.

By the Court.— So ordered.  