
    179 F. 78
    BUSH v. PIONEER MINING CO. et al.
    No. 1,755.
    Circuit Court of Appeals, Ninth Circuit.
    May 2, 1910.
    
      Albert H. Elliot, Hobbes & Bell, Geo. D. Cochran and John J. Reagan, for plaintiff in error.
    Ira D. Orton, Campbell, Metson, Drew, Oatman & Mackenzie and E. H. Ryan, for defendant in error Pioneer Mining Co.
    
      Ira D. Orton, A. J. Daly, Albert Fink, Campbell, Met-son, Drew, Oatman & Mackenzie, and E. H. Ryan, for defendant in error Nome Exploration Co.
    Joseph Hutchinson, for defendants in error Bear Mining & Trading Company, Carlson, Adams, and Ashley.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   GILBERT, Circuit Judge

(after stating the facts as above).

Error is assigned to the rejection of the deposition of Alexander and of his deed to the plaintiff in error, made after the commencement of the action. In ejectment the plaintiff must recover, if at all, upon the state of his title as it subsisted at the time of the commencement of the action. Evidence of any after-acquired title is inadmissible, unless the foundation therefor has been laid by a supplemental complaint, under the authority of a statute which permits the filing thereof in actions at law. There is such authority in section 98, p. 164, Carter’s Code Civ.Proc.Alaska, which provides that: “The plaintiff and defendant respectively may be allowed, on motion, to make a supplemental complaint, answer or reply, alleging facts material to the case occurring after the former .complaint, answer or reply.”

The rule of practice under such statutes is similar to that of the chancery courts in reference to supplemental bills, and the supplemental complaint differs from an amended complaint in that it does not take the place of the original pleading, but stands with it and adds to it some fact which' has occurred since' the beginning of the action. That fact must be set forth in the supplemental complaint. If the. fact be that the plaintiff in ejectment has, since the commencement of the action, acquired a new or different title from that on which he brought his action, he must allege; the fact, so that the defendant may be apprised of what he is required to meet. In Musselman v. Manly, 42 Ind. 462, the court said: “A supplemental complaint is not, like an' amended complaint, a substitute for the original complaint, by which the former complaint is superseded; but it is a further complaint, and assumes that the original complaint !• is to stand. A supplemental complaint must consist of facts which had arisen since the filing of the original complaint, * * * and must show upon its face that it is supplemental, and relates to matters which had occurred subsequent to the commencement of the action.”

Cases in point are Reily v. Lancaster, 39 Cal. 354; Roper v. McFadden, 48 Cal. 346; Taylor v. Gooch, 110 N.C. 387, 15 S.E. 2; Johnson v. Briscoe, 92 Ind. 367; Samuel Kahn v. Old Telegraph Mining Co., 2 Utah, 174; Hardy v. Johnson, 1 Wall. 371, 17 L.Ed. 502.

It is argued that the so-called amended complaint was in fact a supplemental complaint, sufficient to bring to the attention of the court and the opposite party notice of a fact which occurred subsequent to the commencement of the action, and that the language of the motion for leave to file it, in referring to facts occurring since the filing of the original complaint, advised the defendants that it was a supplemental complaint, upon which the plaintiff proposed to introduce evidence of the newly acquired title. We may concede that, while a supplemental complaint should properly be designated as such, nevertheless, under the liberal rules of code pleading, the name given to the pleading by the pleader may be disregarded, and its true nature may be determined by the allegations which it contains. But the question here is whether the allegations of the so-called amended complaint were such as to indicate that it was in fact a supplemental complaint, and that the plaintiff in the action intended to offer proof of a title acquired after its commencement. To this- question there can be but one answer. There was no allegation that the plaintiff had or intended to rely on a title acquired since the commencement of the action. The allegation that the plaintiff claimed under locations made on and subsequent to August 1, 1900, “who thereafter conveyed to said plaintiff,” was not a statement of a fact occurring after the commencement of the action.

But it is contended that the defendants in error waived their right to question the amended complaint, or to deny that it was a supplemental complaint, by going to trial without demurring thereto, and authorities are cited to the proposition that where no cause of action is stated in the original complaint, and a supplemental- complaint is filed for the purpose of setting up a cause which has subsequently arisen, and the defendant makes no objection to such supplemental complaint, but permits the cause to be heard on the merits, he waives all objection to the supplemental complaint based on the insufficiency of the original complaint. But the doctrine of those decisions is not involved. In this case the original complaint sufficiently and properly pleaded a cause of action in ejectment. The same may be said of the amended complaint. There was nothing, therefore, to be waived by the defendants by going to trial, as they did, without demurring to the second complaint, which apparently was intended to take the place of the first. The motion which they made to require the plaintiff to set forth more definitely the nature of his claim of title could have been denied by the court only upon the theory that the second complaint was in fact what it 'purported to be, an amended complaint. As an amended complaint, to stand in place of the original complaint, it contained all the averments essential to good pleading in ejectment; but as a supplemental complaint it was fatally defective in not specifying the facts which had arisen since the commencement of the action, and which made a supplemental complaint necessary.

The judgment is affirmed.  