62 Wis. 542 | Wis. | 1885
It is very clear that the defense in the amended or substituted answer is placed on a different ground from the one relied on in the original answer.' In the original answer the trespass was admitted, but the defendants alleged that their servants had entered upon the plaintiff’s land by mistake, and had cut and removed the pine timber therefrom. One of the defendants made an affidavit to 'that effect, and in the answer an offer of judgment for $992.79 was made, in compliance with sec. 4269, R. S. On the trial in the court below and in this court, the defendants claimed if a person, while cutting timber on his own land, carelessly and negligently cut across the line on the adjoining land, that such cutting should properly be held to be done by “ mistake,” within the meaning of that section. But this court held otherwise, as will be seen on reference to the decision in 58 Wis. 379. Now, in the amended or substituted- answer it is in substance alleged that
The sufficiency of this defense is not a matter now before us. The question is, Did the circuit court improperly permit the amended or substituted answer to be filed, under the circumstances? Due notice was given that the defendants would apply on the trial for leave to file the proposed answer. On the hearing of the application, which was resisted by the plaintiff, leave was granted on the terms imposed. But it is now insisted by the learned counsel for the plaintiff that allowing the amended or substituted answer to be filed when it was, was not within the discretionary power of the court, and was error. It is admitted that sec. 2830, R. S., in regard to amendments, has been and must be liberally construed in “furtherance of justice;” but it is said it cannot be so construed as to authorize a substitution of one defense for another, especially where the substitute is inconsistent with the original pleading. It is said the power conferred is to amend, not to change or substitute one defense for another.
The question as to the power of the trial court to allow amendments to pleadings has arisen in a variety of cases and been considered. Amendments have been permitted at one stage of the cause which were properly denied at another. Much necessarily depends upon the character of the pleading to be amended, the nature of the amendment, and when objection to its being made is first taken. Possibly,
Within the rule thus stated it is impossible for us to reverse the order allowing the amended or substituted answer to be filed. It is true, allowing, the amendment practically enables the defendants to withdraw admissions in respect to committing the trespass which thejr had made in the first answer. But this could not operate as a surprise upon the plaintiff, because she had ample notice of the application to amend. Besides, the amendment was granted on the pay
We do not consider it necessary to notice in detail all the cases which are cited on the brief of appellant’s counsel. We may, however, observe, in respect to Shernecker v. Thein, 11 Wis. 558, and Ballston Spa Bank v. Marine Bank, 16 Wis. 120, that the applications to amend were made during*’ the trial and refused. In each of these cases the court exercised its discretion, and this court was unable to say that there had been any abuse of such discretion.
It follows from these views that the order of the circuit court must be affirmed.
By the Court.— It is so ordered.