16 Iowa 183 | Iowa | 1864
I. The right to amend a pleading is not an absolute and unconditional right; it is to be allowed “in furtherance of justice,” under a sound judicial discretion; and while we would not sanction a violation of either the letter or spirit of our Code, in which the most liberal provisions for amendments are made, we do not discover any abuse'of sound discretion, or violation of those provisions, in the action of the Court in this case. Revision of 1860, §§ 2972, 2975, 2977, 2979; Harvey v. Spaulding, 7 Iowa, 428. In this case the defendant, as the jury was called, asked leave to amend his answer, not for the purpose of more fully stating his defense to this action, but to state a cross-action against the plaintiff, in the nature of a new suit. His defense was not prejudiced by the action of the Court, nor was his cross-action barred; he still has it.
II. The only witnesses to the alleged assault and battery were the parties themselves; and in their testimony before the jury, each swearing for himself, there were perhaps more conflicting statements than usual, even in such cases; and while the defendant succeeded in producing several witnesses, who testified to plaintiff’s bad character the
III. The next and last alleged error complained of by the appellant, is, that upon the hearing of the motion for a new trial, “ the Court intimated to counsel his inclination to grant a new trial, unless they would remit one hundred dollars of the verdict,” which was done, and a judgment rendered for the balance. The provisions of our statute on the subject of new trials (Rev. §§ 3112-3120) do not contain an express and direct authority for the Court to impose terms upon a party to avoid the granting of a new trial, while it does give that authority where the motion is granted. But it will be remembered that the Revision does not contain all the powers of a court upon that subject; those provisions are engrafted upon the common law, which yields when in-conflict with them, but when in harmony exists in full force and vigor. This power to impose terms, or as it was called, “ the alternative presented to the party by the Court ” has not only been recognized as a principle but has had frequent practical applications in the common law courts of England and of this country. 1 Gra. & Wat. New Trials, 456; Brown v. Tanner, 1 Car. & Payne, 651; Evertsen v. Sawyer, 2 Wend., 507. And this rule is equally applicable in cases of tori. Mr. Sedgwick
This power of the District Court has also been several times recognized by this Court, indirectly in the cases of Gordon's Adm. v. Pitt, 3 Iowa, 385; Terpenning v. Gallup, 8 Id., 74; Woodward v. Horst, 10 Id., 120; and directly in Dawson v. Wisner, 11 Id., 6. In view of these authorities, the action of the District Court was correct, and this is, therefore,
Affirmed.
