79 S.E. 637 | S.C. | 1913
October 9, 1913. The opinion of the Court was delivered by Under date of February 6, 1907, the defendants made and delivered to McLaughlin Brothers *19 their joint and several note, payable to their order one year after date. On December 6, 1907, the payees discounted said note at the Citizens Savings Bank, of Columbus, Ohio. Thereafter, on October 30, 1909, The Ohio Trust Company, being the owner of the entire capital stock of the Citizens Savings Bank, took over all the assets of the bank, including said note, and, on that day, the stockholders of The Ohio Trust Company changed its corporate name to The Citizens Trust and Savings Bank. Thereafter, this action was brought on said note in the name of Citizens Savings Bank, and it is alleged in the complaint that said bank is the owner and holder of said note. That allegation is among others, denied by the defendants.
When the facts above stated came out in the evidence introduced by plaintiff at the trial, the defendants moved for a nonsuit, on the ground that there was a fatal variance between the allegation and proof as to the ownership of the note sued on. The plaintiffs' attorney moved for leave to amend by changing the name of the plaintiff from Citizens Savings Bank to The Citizens Trust and Savings Bank, so as to make the allegation conform to the evidence. The Court refused the motion and granted a nonsuit.
The Code of Procedure was adopted for the purpose of getting the Courts away from the technicalities of common law pleading and practice, under the rules of which the utmost precision was required, and the most intricate distinctions were drawn, which too frequently sacrificed substance to form and defeated substantial justice. Hence, the Code has made liberal provisions with respect to allowing amendments, and the legislature has declared that the Code must be liberally construed, with the view to the doing of substantial justice. In the chapter which deals with "Mistakes in Pleadings and Amendments," we find section 220, which reads: "No variance between the allegation in a pleading and the proof shall be deemed material unless it have actually misled the adverse party, to his prejudice, in maintaining *20 his action or defense, upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the Court, and in what respect he has been misled; and thereupon the Court may order the pleading to be amended, upon such terms as shall be just." Section 221 provides that, where the variance is not material, the Court may direct the fact to be found according to the evidence, or order an immediate amendment. Section 222 provides that where the allegation of the cause of action or defense is not proved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance within sections 220 and 221, but a failure of proof. Section 224 provides: "The Court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceedings, by adding or striking out the name of any party; or by correcting a mistake in the name of the party, or a mistake in any other respect; or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved." Section 227 reads: "The Court shall, in every stage of action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect."
The facts and circumstances warrant no other conclusion than that the action was brought in the name of Citizens Savings Bank through mistake. It is equally clear that defendants have not been misled thereby to their prejudice, in maintaining their defense on the merits. At any rate, they have not even alleged that they have been so misled, to say nothing of their failure to even attempt to comply with the requirement of section 220 by proving to the satisfaction of the Court wherein they have been misled. *21
In Roundtree v. Ry.,
In Bull v. Lambson,
In Coleman v. Heller,
In Tarrant v. Gittelson,
The foregoing cases show clearly that the Court erred in refusing plaintiff's motion to amend. See, also, Sibley v.Young,
Reversed. *24
MR. JUSTICE WATTS dissents and thinks judgment shouldbe affirmed.
MR. JUSTICE FRASER concurs in result, in the opinion of MR. JUSTICE HYDRICK.