Mellen v. Banning

If the papers upon which this appeal has-been presented sustained the allegations of the counsel for the appellant that the amended and supplemental complaint set up a new and different cause of action from that contained in the-amended complaint, it seems to us that the order appealed from should be reversed. But the difficulty with the appellant’s case as contained in the papers is that it does not appear what the cause of action set up in the amended complaint was. It is true that in the affidavits presented by the appellant in opposition to the-motion to serve the amended and supplemental complaint various-grounds of objection thereto are set up, among others, that the-cause of action set up in the proposed amended and supplemental complaint is inconsistent with the cause of action set forth in the original and amended complaint, and that the plaintiff abandons-the action as an action for the construction of the will, alleging that the power of sale contained in the will is void, and now seeks-to recover a judgment admitting the power of sale to be valid,, and that the power has been extinguished by the acts of the devisees named in the will. If these objections appeared upon the papers presented upon the motion, it is doubtful whether the court would have been justified in making the order; but, as the amended complaint, then already served, does not appear in the papers upon appeal, it is impossible for the court to tell whether these grounds of objection are well founded or not. The order appealed from is presumed to be correct, and, until the papers upon appeal *754show that it should not have been granted, it necessarily devolves upon this court to affirm the same. Order affirmed, with $10 costs and disbursements. All concur.