Ball v. McGeoch, 78 Wis. 355

Ball v. McGeoch

78 Wis. 355 | Wis. | 1890

Cassoday, J.

The court may upon the trial, or at any other stage of the action before or after judgment, in furtherance of justice, and upon such terms as may be just, amend any pleading by correcting a mistake therein, or by *359inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading to the. facts proved. Sec. 2830, E. S. Notwithstanding the extensive power thus given, it is claimed that the allowance of the amendment of the complaint in the case at bar, in the manner indicated in the foregoing statement, was an abuse of discretion, for the reason that the application therefor was not accompanied by an affidavit of merits. It is true the original complaint was not verified, but the amended complaint was verified by the plaintiff in the usual manner, and was also accompanied by an affidavit of his attorney, showing why the facts alleged in the amended complaint were not alleged in the original complaint. A formal affidavit of merits would have furnished the court with no additional facts in regard to the merits of the application. It sufficiently appeared from the moving papers that the allowance of the amendment was in the furtherance of justice. The practice in such matters has become much less stringent since the Code, and fully justifies the granting of such an amendment without such formal affidavit of merits. Sweet v. Mitchell, 19 Wis. 524; Rogers v. Wright, 21 Wis. 681. This court has gone so far as to dispense with such formal affidavit of merits on an application to open a default accompanied by a verified answer on the merits. Sec. 2847, R. S.; Omro v. Ward, 19 Wis. 232; Levy v. Goldberg, 40 Wis. 314, 315. The amended complaint appears to be substantially for the same cause of action alleged in the original complaint, and the order authorizing the same seems to be justified by the repeated adjudications of this court. Lackner v. Turnbull, 7 Wis. 105; Matteson v. Ellsworth, 33 Wis. 488; Wells v. Am. Exp. Co. 49 Wis. 224; Marschuetz v. Wright, 50 Wis. 175.

By the Court.— The order of the circuit court is affirmed.