104 Ark. 276 | Ark. | 1912
(after stating the facts). Did the court abuse its discretion in refusing to allow defendant to file the supplemental answer?
The amended and substituted complaint took the place of the original complaint, which thereafter could not be considered a pleading in the case. It alleged, as did the original complaint, that the appellee had retained from the payments due the contractor the 10 per cent, of the estimates, as provided in the contract. And the answer to the first complaint, not being withdrawn, was an answer thereto. In it no denial of liability of the surety company for any default of the contractor was attempted to be. set up, nor was it intimated that it had been released as surety by any conduct upon the part of the appellee. Said answer did not deny the allegations of the complaint. It claimed only that appellee and the creditors of the contractor had no right to appropriate any part of the contract price of the building to any debt or obligation of the contractor until after he had fully discharged his obligations to appellee, and released the Bonding Company from liability, and that none of the claims for labor and material could be enforced or were liens against said propérty; alleged that the building was completed, and that upon a fair and just settlement between appellee and the contractor there was nothing due from the contractor to him. The court rendered a decree, holding three of the claims valid and that the claimants were entitled to a lien therefor against the building, and that the appellee herein should have and recover from the Bonding Company judgment for said several amounts of the claims. Both the Bonding Company and appellee appealed therefrom, and its attorney wrote the judgment against it and conducted the case in the Supreme Court. After its affirmance here and in the hearing further of the matter below, on the other claims, it tendered an answer, denying liability upon the bond and claiming to have been released as surety therefrom by the conduct of appellee in not retaining 10 per cent, out of the payments due the contractor upon the estimates of the architect, as provided in the building contract, which answer the court refused to permit to be made.
It had the right to answer the amended and substituted complaint, and, not having done so, its answer to the original complaint was an answer thereto. In both the complaints it was alleged that the appellee herein had retained the 10 per cent, of the payments due the contractor, as shown by the architect’s estimates, in accordance with the terms of the contract, and said allegation, not being denied, was admitted. To have permitted the filing of the answer tendered would have changed entirely the issue and would not only have been inconsistent with appellant’s conduct of the case throughout, but contradictory as well, in allowing it to deny two years after-wards the fact which was expressly alleged and admitted by it in the beginning. It was not shown by affidavit, or otherwise, that the original answer was filed under any mistake as to the facts, nor that all the facts were not as well known to appellant at the time it was filed as when the unverified supplemental answer was tendered.
Our statute is liberal and permits the court in its discretion, for good cause shown, to extend the time for filing an answer beyond that limited by law. Kirby’s Digest, § § 6116 and 6146. It is likewise liberal relative to the amendment of pleadings (Kirby’s Digest, § 6145), permitting certain amendments to be made at any time in furtherance of justice, even during trial, when they do not change substantially the claim or defense. The whole matter however is within the discretion of the trial court, which' must depend largely upon' the special circumstances of each case, and in reviewing the exercise of discretion in granting or refusing leave to amend, this court does not reverse the action of the trial court unless it affirmatively appears that there was a plain and manifest abuse of discretion.
“Except under very special circumstances, leave will not be granted to the defendant to file an amended answer, in which it is proposed to take entirely new ground, and change entirely the character of the defense.” 1 Enc. Pleading & Practice, 499.
In Miller v. Fraley, 23 Ark. 736, the court said: “The discretionary power of the court to allow amended or supplemental answers to be filed, unless abused or exercised in violation of established rules, is not the subject of review.” See also Reynolds v. West, 32 Ark. 244; Bluff City Lamber Co. v. Hilson, 85 Ark. 39; Patrick v. Whitely, 75 Ark. 465; Kempner v. Dooley, 60 Ark. 527; Mooney v. Tyler, 68 Ark. 315.
Here leave was asked to file a pleading, as an answer or an amendment to an answer, in which it was proposed to change entirely the character of the defense and set up an altogether new one, more than two years after appellant had filed an answer to the original complaint, not denying the fact alleged therein, which is now proposed to be denied to establish a defense thereto. No excuse is shown for the delay, nor any showing made that it labored under a misapprehension or mistake as to any of the facts at the time of the filing of the original answer.
As already said, it was within the discretion of the court to grant or refuse permission to file the answer, and we do not find any abuse of judicial discretion in the chancellor’s refusal to permit the filing of the amended answer, under the circumstances of this case.
The decree is affirmed.
