
    COPLAN, Appellant, v. EASTWOOD et al., Respondents.
    (145 N. W. 431.)
    Appeal — Right of Appeal — Order to Amend After Judgment on Demurrer — Waiver.
    Plaintiff, hy obtaining an order granting him leave to amend his complaint, after judgment on demurrer dismissing the action, elected to abide by the ruling on demurrer, and waived ■his right to appeal from that part of the order sustaining the demurrer, though he did not actually amend under the leave ■granted; since, by taking leave to amend he indicates an intent to abandon his former position, and to abide by the ruling granting leave.
    (Opinion filed February 18, 1914.)
    Appeal from Circuit Court, Codington County. Hon. Carl G. Sherwood, Judge.
    Action by John Coplan against Lydi-a E. Eastwood, and others. Fr-om an order sustaining a demurrer -to the complaint, plaintiff appeals.
    Appeal dismissed.
    
      Han ten & Hanten, and Perrett F. Gault, for Appellant.
    Right to appeal from the ruling on the -demurrer not waived by appellant.
    
      The election to amend occurs when the am-ended pleading is filed. O' Hallo ram- v. Marshall, 35 N. E. 926.
    Until the amended -pleading has been filed, there -is clearly no waiver. Id.
    Respondent attempts to draw an extremely attenuated distinc■tween taking leave to amend and granting leave to amend. Other things b-eside-s matters of law must be considered before -determining whether to -carry u-p to this court a ruling on -a- demurrer. It has been the settled interpretation of these provisions in- this and other circuits, that the election occurs when the amendment is made or the appeal taken, until that actually occurs the party may avail himself of -either privilege-.
    In the eals-e at bar appellant did not file an 'amended- complaint, nor di-d he tender any, or even offer -to amend in any way.
    
      George H. Marquis, for Respondents.
    The plaintiff ha-s -waived- the -error, in -sustaining -the demurrer. The force and effect of -the -plaintiffs- application to th-e trial Court for, and his obtaining 011 his- own motion and request the order of September 18th 'modifying th-e -order of September 2nd by striking therefrom the words “ordered that the defendants have judgment hereon dismissing- this action with costs,” and giving tlie -plaintiff leave -to serve and file an amended com-plai-nt, was equivalent to and -constituted- an 'application on the plaintiff’s paid for and an order -thereon giving -the plaintiff leave to amend his complaint, and the plain-tiff thereby took leave -to amend, and by so-taking -leave to amend, waived the error, i-f there w'a-s error, in sustaining the demurrer. -Mill-er v. McCormack Harvesting Machine Co., 84 111. App. 571; Morrill v. Casper et al., (Old.) 73 Pac, 1102.; Berry v. Barton-, 12 Old. 221, 71 Pac- 1074, 66 R. R. A- 5*3-
    In -order to take advantage of a ruling on a demurrer, where the demurrer is sustained, the -party must stand- -u-pon his pleading h-cil'd to he defective, and not amend1 or -offer to amend. Board v. Beaucham-p, (Oída.) 88 Pac. 1124. Easton v. Woodbury, 71 S. C. 250, 50 S. E. 790.
    There is verjr obvious -distinction between being granted the leave and -taking the -leave. It is the practice in some of -the circuits for the -trial, -court, where it considers a -pleading- demurrable, but amendable, to- grant the permission to amend on stated -terms within -a fixed- period in its order 'sustaining a demurrer, and often the attorney for the party demurring adds to the order prepared by him for the court sustaining the demurrer the leave to- amend, without any direction from- the court so to do, or request from the ■other side for such1 leave. In -such cases the party against whom the ruling -was made cannot be s-a-id' to have taken permission, although it has been granted, and if he -does not take advantage of the permission granted- unasked, it may 'be said for hi-m-, as was said in Dagget v. Flanagan, 78 land. 253, quoted from) O’Hialloran v. Marshall, “No- act was done by appellant which can be construed into an abandonment of his exception.”
    The original order was the same in effect as that in Iowa and Dakota Tel. Co. v. Schamber, State Treasurer, 15 S. D. 588, 91 N. W. 78.
    It was -the duty of the plaintiff’s attorney in this case, i-f plaintiff desired to stand upon his complaint, to let the original order remain as- it was when entered, and not consume the time of the court by a motion for a modification of such -order to permit him to amend. Tripp v. 'City of Yankton, (on rehearing), ix S. D. 353- 77 N. W. 580.
   \VHITIN;G, J.

This, is- an appeal from an order sustaining a demurrer to plaintiff’s comp-lai-nt. Such order, as -originally made and entered, after sustaining the demurrer, further -read: “Ordered : that the defendants have judgment hereon dismissing this action, with costs.” Plaintiff then moved the 'court for an order striking 'from such order the words quoted, and inserting “a -provision that plaintiff be granted leave to amend his complaint within such -reasonable' time as the count may- fix.” The- court -granted plaintiff’s -motion and made and entered an 'order modifying its former order and granting leave to amend; plaintiff failed to amend, and, within the time allowed -for -amendment, plaintiff appealed from the original order sustaining -the- demurrer.

Respondents contend, and we -think correctly, that appellant, by asking and obtaining the order granting him leave to- amend his complaint, elected to abide 'by the ruling of the trial court, and by such election lost his right to appeal from that -part of -the order which sustained the demurrer. It is -unnecessary for us -to review the matters set forth- in the affidavits filed on the -motion asking the court to amend its first order; it is immaterial whether the trial court found .with plaintiff qr .defendant upon the issues of faGt raised by such affidavits; the material thing is: The plaintiff saw fit' to ask for leave to amend, and such leave >wa-s granted. The granting of such leave rested in the 'discretion of the trial court. — ■ appellant .could not demand1 it as- a matter of right. There was no reason for plaintiff toi seek ,a modification, of the order -sustaining the demurrer unless he desired' to amend. Attorneys for -plaintiff must be presumed to know .the law of itheir case, and therefore to know whether they desired to rest -on their former pleading, or desired to confess the demurrer by -pleading over; itheir request for leave to amend was an expression of their election. Appellant contends that there could be no election until there, was an actual pleading over; but, as was well stated in Berry v. Barton, 12 Okl. 221, 71 Pac. 1074, 66 L. R. A. 513: “But it is argued that in this case the defendants did not plead over, and therefore they are in a position to urge as error the sustaining of the demurrer. This position cannot be sustained. It is true that nearly all of the cases state that, by pleading over after a demurrer has been sustained, a party waives the error, if any has been committed by the court in such ruling. The rule mot only applies where- the party actually pleads over, .but also- where he takes leave itoi plead over after a demurrer 'has been sustained to his pleading. It is the' intention of the party as indicated 'by his acts, at the time, which fixes his standing in court. By talcing leave to. amend he thereby indicates his intention to abandon his former position -and to draft his pleading upon a different theory, or to state his cause of action in different language. By talcing leave to amend, he admits the insufficiency of the pleading, and lie is bound by his own conduct, and cannot afterwards -take advantage of it. Any other rule would permit delays, under the guise of a desire to submit to the ruling of the court and amend, when in fact the party had no intention of .amending.”

In Hurd et al. v. Smith, 5 Colo. 233, the court said: “A demurrer was sustained as to the second, third, fourth and fifth defenses, and overruled as to the first and sixth. The defendants stood by their fifth def ense, and- took leave to amend as to the others. This action waived their right to assign -error on the action of the court in sustaining the -demurrer, except .as to their fifth defense.”

■ A case peculiarly analogous to the case at bar is that of Clement v. Dean, 51 S. C. 317, 28 S. E. 942, wherein the trial court announced (that it ¡would sustain the demurrer to the complaint, and plaintiff moved to -be allowed to amend1 his complaint. After considering- such motion the -court ■entered- -an -order sustaining the demurrer 'but granting plaintiff leave to amend. The -court .used the following words which are directly applicable (to this case — ¡this appeal having been italcen before the expiration o-f the time granted for amendment: “There is nothing in the- record ¡to show whether the plaintiff ¡has -or will accept or decline the privilege granted -him to amend, and, in (the absence of any such -showing, we are bound to assume that the plaintiff either has or will accept the privilege which 'he himself -a-sked for. If he has already ¡done so, or will hereafter do so, then the question whether there was error in sustaining -the -demurrer to the -complaint as origin-ally framed ¡becomes a purely speculative question, which this court will not consider ; for in that -event the complaint will be different from that which has been adjudged open to demurrer, and will doubtless-contain such allegations-, the -absence of which afforded grounds for the demurrer.” Morrill v. Casper, 13 Okla. 335, 73 Pac. 1102; Doyle v. City of Sycamore, 193 Ill. 501, 61 N. E. 1117.

We think the principle involved herein -is- -th-e -same as that underlying the -derision in Sun Printing & Pub. Ass’n v. Abbey Salt Co., 62 App. Div. 54, 70 N. Y. Supp, 871, wherein the court’ said: “After -th-e orders striking o-ut :a- portion -of the defendant’s answer ¡and directing judgment had been -made -and entered, -the defendant, up'011 the basis- o-f these ¡orders, applied to, and -obtained from th-e court, -at Special Term, leave ¡to -serve -an amended1 answer correcting the -defects -alleged1 -to ¡have existed in the answer originally served. The application was addressed to the discretion of the -court, and when leave was given, it w-a-s as a favor to ¡the defendant. Having obtained this favor by reason of the existence of -such orders, -the defendant was thereafter precluded from -appealing from- them-. It -could -not -accept ¡a -favor from the court by reason of their existence and thereafter -a-ssert -that the ¡orders ■had been -improperly made, or be heard to question ¡t’h-eir validity.”

We have not overlooked th-e -cases of West v. Wright, 98 Ind. 335, and O’Halloran v. Marshall, 8 Ind. App. 394, 35 N. E. 926, wherein -appellant’s ■ position is- sustained, but w¡e think the following of such holding would 'tend to delay the final disposition, of cases, and -to encourage careless preparation of cases.

Nothing we have -said -herein should' ¡be construed as holding that where the 'trial court of its own motion, in making and entering an order sustaining -a demurrer, inserts -in such order a .provision granting the right to plead over, the party against whom such ruling upon demurrer was made eouldt not appeal from such order regardless of such permission to plead over. Neither do we want to be understood as holding that, even where, as in this case a party had sought leave to plead Over, -he could not afterwards, as was done in Farmers,’ etc., v. School Twp., etc., 118 Iowa, 540 92 N. W. 676, procure from the trial court an order allowing him, after he bad procured such leave to amend, to withdraw his request for such leave, to stand on his pleading, and consequently to appeal from the order sustaining the demurrer.

Upon the 'dismissal of this appeal it will still he within the sound discretion' of -the trial court to. grant further time within which appellant may serve and file an amended complaint.

The appeal is dismissed.  