3 Iowa 325 | Iowa | 1856
We have expressed the opinion, that the transaction between Hathaway and Preston, was in effect an assignment for the benefit of creditors. The questions of the case, turn on this. It is unquestionably clear as a .proposition of law, that the plaintiff may show that this assignment is void, under chapter 62 of the Code, as being general, and made by an insolvent, or in contemplation of insolvency. In order to do this, he must show that there were other creditors not provided for, and that the assignment contained substantially all the property of the assignor. The cause does not turn at all upon the property being that of Hathaway only. The property of one partner is liable for partnership debts, and this may be such a case. But the question here seems to be, whether he may do it upon these questions and answers. It does not appear to us, upon what grounds the court below decided; but we assume that it was that
The remaining question, concerning the amendment, is, whether it could be made at that stage of the case — that is, after the cause had been taken to the Supreme Court ? In this fact, probably consisted the reason of the refusal to permit the amendment, upon the ground that the cause must be tried anew upon the same pleadings. The 1759th section of the Code is: “ The court may allow material amendments at any stage of the proceedings, upon such terms, and subject to.such rules as it may prescribe.” We should not be inclined to lay great emphasis upon the words “ at any stage of the proceedings,” for there is much reason in the argument, that they were intended to apply to the ordinary course of an action, before it comes to an appellate court. But taking into view this language, with the general tone of the Code, with reference to coming to the substance and merits of a cause, and considering that there is no really strong reason against it, apart from the question of costs, and then remembering that this matter of costs is entirely within the discretion of the court, we believe it permissible. The practice, even now obtains in substance. This court sometimes sends a cause back to the District Court, with leave to amend. We will hold that the court should have allowed the amendment, believing that the practice will tend to the ultimate attainment of truth and justice.
Another error assigned, is the rejection of the evidence offered ; that is, the notes, the judgment, and the witness, McIntosh. The foregoing remarks show, that in the opinion of this court, they should have been received, at least with the amendment, if not under the former pleading.