The Federal Reporter (Annotated), Volume 171: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. September-October, 1909. Page: 14
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, . : FA D ERAL REPORTER.
c~cerned, ,it interrupt,ap to all matters subsequently alleged by, way
of'ametdment which are part thereof. But where' the cause of ac-
-tion .rlie ippn, in an amendment is different froi that originally
as ~, , the reason oft the rulp ceases to exist, and heice the rule
no longer applies." Uioa pPacific Railway, Co. v.' yler, '158 U. S.
-985, 2a7, 15 Sup. Ct.. 87,, L. Ed. 98'3,; Railway Coimpany v. Cox,
14t5 L,, S. 59,, 601, 606, 1rSup. Ct. 905, 36 L.' Ad. 829; Sicard v.
Davisf,.-,Pet, 124,' 8 L', .'342. And this court has repeatedly held
that asp amendment wll}; introduces a new and dikerent cause of
action, and, mrkes a nqp an4 different demand, not before ihtroduced,
or made in the pending suit, does not relate back to the beginning of
the ,tigqnsq.as to stop,the, runningofthe statute, 1but is equivaJlet to
a frehl suit upon,a new pause of action, and the ,statute continues to
nl ,til., the amendment is filed. Whalen v. Gordon, 95A Fed. 305,
399, 37 C. C. A. 70, 74;,., an De 1aar v. Van Domseler,, 56 Iowa,
671', 674; 10 N. W .247;, Jacobs v. Insurance Co., 86 Iowa, 145, 5,3
N, W.; 101; ,Bqel y. Tra;stei- Co., 45 Mo. 563; Scovill v. Glasner,
79 Mo.,449, 453; Crofford v. Cofhran, 2 Sneed (Tenn.) 492; Rail-
road Co. v. Jons, 149 Ill. 361, 37 ' . E. 247, 24 L. R. A. 141, 41 Am.
St. Rep. 278; Eylenfeldt v. Steel Co., 165 Ill. 185, 46 N. E..266;
-Railroad (C,, v. Campbell, 170-Ill. 163, 167, 49 N.,E. 314; Christy
v. Farli ,49 Mich., 319, 13,N., W.' 07; Flatley v. Railroad Co., 9
Heisk, ,(Tenn.), 230, 237; Buntin y., $ailway Co. (C. C.) 41 Fed.
744, .749,; Newton, v. Allis, 12 Wis.,a,8; Railroad Co. v, Smith, 81
Ala., 229, 1 South. 723.: The aapthorities cited by the majority do
not conflict with this,rule., In Johnspn y. Waters,, 111 ,U. 'S. 640,
670, 672,4 Sup'. Ct. 619, 8'"L. Ed. 47,.,the amendment did not in-
troduce any new cause of action nor ,pkad any nw fhet5 taking the
case -out of the statute of limitations which were, not admitted by the
answer before the amendment. See middle of page ,672, ,In Bowden
v. Burnham,, 59 Fed, 752, ,4,C. Q. A.,248, and, Crpegg~e, Phipps &
Co. v. Hulbert, 70 Fed. 209,,16 C. C. A, 498, no new cause of action
was introduced by the arendpnents, , and. in the, latter.case that fact
is particularly noted at, page -506. Thp fact that ,ar amendment was
made to the complaint, at law on Jpx e.,,x 903, whereip the facts were
pleaded upon which the i*surapc company relied in, the subsequent
amendment in the bill,,ip~epglity, is not material, because the amend-
ment of 4903 was useless in -the acto at law, and, if it had Introduc-
ed the causq of action in equity, that capKp,could not .ve. been main-
tained,, becue it had :qxpired on July8,,190,, ,9, 'oths before the
amendment was madp. .,, , , 1,
It,is no answer t, t the. established' rule here invokpd that the cause
of, action, at la, and the cause of actjq ,in,equity were funded on the
same ppgtr gt,and ,transaction and sought the recovery, of the same
amount of- l pey. ,So wre the typo causes iq Whlen v. Gordon, 95
Fed, 35;37-.,C..Aa, 70,,an in m azy other,cases inwich this ques-
tion is, 4cided, and ,the, two, causelS i ,Union Pacific, Railway: Co. v.
,Wyler, 16 T. S, 285, 297,.15 Sup. Ct. 38 L. Ed., J3,.werg found-
e1itipon thg'same tort. The tests of identity of e4uses of action under
tris xulprp:, WIll tie same evidenc e,sustain each?' Will a jugment
t tr{st r, e , ecn. on .., e ,cae at bar b t ,these ques-
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The Federal Reporter (Annotated), Volume 171: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. September-October, 1909., legislative document, 1909; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38217/m1/26/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.