The record-union., 1899-06-30
CANNOT RECOVER THAT WAY
SUITS AGAINST UNION b. AND L.
STOCKHOLDERS.
Judge Buckles Denies the Motion
Of Plaintiff to Amend the
Complaint.

superior Judge BUCKLES OF OOlaHO
County yesterday rendered a decision
in the case Of Thomas O'Neil, receiver
for the Union Building and Loan Asso-
citation, against e. S. Elkus, sustain
ing the objection to the amendment
offered to the complaint, and holding
the remedy to lay in the bringing Of
a new action. The decision in full is
as follows:
The complaint alleges the defendant
to have been a stakeholder in the
Union Building and Loan Association,
a corporation, and owning stock in the
sixth series; that in violation OF law
and of it's articles of Incorporation and
bylaws the Union Building and Loan
Association ordered the redemption or
the said sixth series Of stock, and did
thus redeem defendants shares OF stock
at $500 per share.
For a second cause of action the COM
plaint alleges the same amount OF mon
ey had and received by defendant.
But it is manifest, from the allegations
of this second cause of action, that II
recovery Is had under it exactly the
same state Of facts must be shown as
would be- necessary under the first
cause of action, viz: That defendant
was a stockholder, owned shares in the
sixth series, and that the association
attempted to- redeem such shares, and
in such effort paid him $500 per share
therefor, and that that was the money
had and received"
In neither of these causes Of action
is there any allegation that plaintiff
or the Union Building and Loan Asso-
<.fo ton, To ind m
back to defendant his shares of stock,
or in any manner to put him in the
same condition and position he occupied
before redeeming his said sixth series
stock.
The amendment proposed, and which
sets up a new and third cause of ac-
ton, depends upon exactly the same
state Of facts as the first and second.
alleged in a different form, and In addi-
ton thereto alleges, among other things,
mistake on the part of the directors or
the said association (not fraud), III
paying to defendant the amount
sued for, for the redemption of his said
sixth series stock. And that in Feb
ruary, 1885, a notice was served on
defendant notifying him that the
Union Building and Loan Association,
through plaintiff, it's receiver did re-
scind the acts of redemption, and de-
manding of him that he return the
money paid him for his stock, which
notice contained an offer to restore to
him the stock he had surrendered when
he received the money now sued for.
The complaint was filed about March
or April 1898, and at that time the
right to recover the money did not ex :
list because there had been no demand
no offer to rescind, and no tender or
offer to tender back to defendant the
stock he had surrendered to the asso-
citation.
The amendment, which sets UP facts
the existence of which are necessary
to recovery, and which facts occurred
long after the action was commenced
is more in the nature Of a supplemental
pleading than of an amendment, al
though it might stand as an amend
ment If no objection had been made
to it
1t is a we'll settled rule of pleading
that IF a party has no cause of action
at the time of the institution of his
suit, he cannot maintain it by filing q
supplemental complaint founded upon
matters which have subsequently oc-
cured (Wittenbrock VS.. Bellmer, 81
Cal II; Morgan VS.. Menzies, Go Cal
243.)
For the reasons herein stated the
amendment cannot be allowed, neither
can it be fled as supplemental plead
ing The remedy is by new action
All cases in this litigation involving
the same points, and where the same
or similar amendment has been Of
.fered, We're heard and considered at
the argument of this case, and the rul-
ding herein applies to all such cases.
The objection to filing the amendment
is sustained and the amendment not
allowed.