
    SEAWELL et al. v. CRAWFORD et al.
    (Circuit Court, S. D. Ohio, E. D.
    May 11, 1893.)
    Nos. 501, 502, and 503.
    Opening Default — Judgment on Amended Pleadings.
    In an ejectment suit amended petitions wore filed, being complete hi themselves, and showing on tlieir'faco that they were not more amendments, but new pleadings, stating new causes of action, and bringing in new parties. Defendants thereupon took leave to answer in 30 days. Held, that a judgment for plaintiff by default would not be set aside-after the end of the term on tlie ground that the original answers making up issues of fact were still on file; for the taking leave to answer was an abandonment of the original issues.
    At Law. Actions of ejectment by J. Hairston. Sea well and others against. Haney Crawford and others. On motions to set aside default judgments in favor of plaintiffs.
    Denied.
    Matthews & Cleveland, for plaintiffs.
    Gardner & Jones, for defendants.
   SAGE, District Judge.

These cases are before the court on motions filed August 27, 1892, to set aside default judgments taken December 16, 1891, and for leave to file answers to tbe amended petitions. The motions are made under section 5354 of tbe Ohio Revised Statutes. There having been no trial by jury, section 726 of tbe Revised Statutes of tbe United States does not apply, and tbe practice may be according to tbe state law. Clark v. Sohier, 1 Woodb. & M. 368. Tbe term at which tbe judgments were taken closed on tbe first Monday of June, 1892. The original petitions were filed in 1889, and tbe answers of some of tbe defendants August 20, 1890. In January, 1891, tbe amended petitions were filed by leave of court. In case 502 new parties were added, and in all tbe cases new causes of action were stated. Tbe amended petitions are complete, and show on their face that they are not mere amendments, but new pleadings. Defendants’ counsel vere notified, and moved to strike tbe amended petitions from tbe files for that they were for different and other causes of action from those set forth in tbe original petitions, and that they purported to entirely change tbe cases from actions at law to suits in equity. On tbe 21st of February, 1891, these motions were overruled, and tbe defendants were given 30 days in which to answer tbe amended petitions. Tbe leave expired. Mo answers were filed. Counsel for plaintiffs waited more than eight months, and then, tbe defendants being still in default, took judgments. Finally, in August, 1892, eight months later, and more than two months after tbe expiration of tbe term at which tbe judgments were rendered, they filed their motions for new trial on tbe ground that tbe judgments were irregularly obtained, in- that tbe answers to tbe original petitions were still on tbe files and made up issues of fact in tbe cases, so that they were not in default. If this w;ere so, there is no showing of any reason or excuse for tbe failure to move for new trial during tbe term. But it was not so. Tbe amended petitions were new pleadings, substituted for tbe original pleadings. They added to tbe original petitions in ejectment a claim in each case for mesne profits and a prayer for partition at law. Counsel for defendants were not misled. They might have bad an order that tbe answers to tbe original petitions be taken as answers to tbe amended petitions, but they did not choose to take such an order. They took, instead, leave to answer in thirty days, and then apparently took leave of tbe case, until eight months after judgment, and two months after tbe term. If there was any irregularity in tbe proceedings it certainly was not on tbe part of tbe plaintiffs or their counsel.

In Robinson v. Keys, 9 Humph. 144, leave was given to plaintiff to amend his declaration, and to defendant to plead to tbe declaration as amended. It was held that by these leaves there was an abandonment of all existing issues, and that, if tbe defendant failed to plead to tbe amended declaration, tbe plaintiff was entitled to judgment by default, notwithstanding tbe plea of tbe general issue to tbe original declaration remained on file. Tbe court said that tbe question might be otherwise bad the defendant not shown such abandonment by taking leave to plead. This decision is in accord with Huckvale v. Kendal, 3 Barn. & Ald. 137. In that case there was a failure to plead to an amended declaration, and a judgment by default was taken, to which the court said the pla,intiff was entitled, although the defendant had pleaded the general issue to the original declaration. In Brown v. Railroad Co., 18 N. Y. 495, 496, it was held that, when a pleading is amended, the original pleading ceases to be a part of the record, because the party pleading, having the power, has elected to make the change. So, also, filing an amended answer is an abandonment of not inconsistent defenses in the original answer. First Nat. Bank v. W. U. Tel. Co., 30 Ohio St. 555, 569. Stevens v. Thompson, 5 Kan. 305, cited by counsel for defendants, does not apply. There a reply had been filed to the original answer. A new party plaintiff was added, and there was no leave to plead anew. The citation from Cohen v. Hamill, 8 Kan. 621, is obiter. It appeared from the record before the supreme court that there had been no judgment by <le fault, and that the case had been tried on its merits. There was no leave or rule to plead in that case. In Cavanaugh v. Tuller, 9 Kan. 233, the plaintiff, after filing an amended petition, under leave obtained by him, replied to the original answer, thus recognizing it as an answer to his amended petition. Kostendader v. Pierce, 37 Iowa, 645, turned upon the construction of the Iowa Code.

The motions for new trial will be overruled, with costs.  