67 Me. 551 | Me. | 1877
The amendment sets out with somewhat more
The burden of the defendants’ complaint seems to be that the presiding judge ruled as matter of law that he had the power to allow it without imposing terms upon the plaintiff, and thereupon did so. The defendants say this is an infringement of Rule Y (Reg. Gen.); that this amendment is matter of substance, and, if allowed, must be allowed only on special terms. But after all, the power which the presiding judge has in this particular under Rules IY and Y, does not essentially differ from that conferred by R. S., c. 82, § 9, to grant amendments “when the person and case can be rightly understood ... on motion of either party on such terms as the court orders.”
Under this statute, it has been held that an amendment proposed after motion to dismiss filed may be allowed without terms. Harvey v. Cutts, 51 Maine, 604.
The whole matter is committed to the discretion of the presiding judge, and the power to allow amendments upon terms substantially includes a power to dispense with the terms if, in the opinion of the presiding judge, justice requires it.
There is no limit upon the judge’s discretion as to terms. If the rule, literally construed, could be held to require the judge to impose special terms of some sort, it would be literally complied with by ordering the amending party to pay one cent, costs. But, de minimis non curat lex. The object of the rule is simply to call the judge’s attention to the question, what, if any, terms shall be imposed, as liable to be affected by the character of the proposed amendment, and the progress the case has made. The exercise of his discretion will not be examined, on exceptions, by this court. Where a demurrer is sustained, the judge’s discretion as to terms is controlled by R. S., c. 82, § 19. But there was no demurrer. Exceptions overruled.
