Clow v. Murphy

52 Iowa 695 | Iowa | 1879

Beck, Ch. J.

i. pleading: a^peíü^from justice. — I. The action was brought to recover the possession of two horses upon which defendant, as a constable, had levied an execution issued upon a judgment against plaintiff, who, in this action, claims that the property is exempt from execution. The original petition, alleged as the ground upon which the horses were claimed to be exempt, that they constituted the only team with which he, as a farmer, habitually earned his living. Upon the trial in the Circuit Court, plaintiff offered evidence to show that he was a married man, which was rejected on the ground that no allegation of the fact was found in the petition. Thereupon plaintiff asked and obtained leave to amend the petition by adding an averment that plaintiff was the head of a family. The action of the court in permitting this amendment is assigned as the only ground of error.

II. Under the Code, the utmost liberality prevails upon the subject of amendments of pleadings. Section 2689 is as follows :

“The court may, on motion of either party at any time, in furtherance of justice, and on such terms as may be proper, permit such party to amend any pleadings or proceedings by adding or striking out the name of a party, or by correcting a mistake in a name of a 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 pleadings to the facts proved.”

In applying this provision, this court has used the following language: “ Under the statute it is the rule to allow amendments to pleadings; to refuse is the exception. The right to-amend is not an absolute unconditional one, but is to be-allowed in furtherance of justice under a sound discretion. Amendments, within the limits of the statute, should always-be allowed when substantial justice will be thereby promoted, and they should not be refused so as to operate as a denial of justice. Miller v. Perry & Townsend, 38 Iowa, 301.

Amendments of pleadings, in cases pending on appeal from justices of the peace, have frequently been held allowable by this court. Stanton v. Warriek, 21 Iowa, 76; May v. Wilson, 21 Iowa, 79; Warren v. Scott, 32 Iowa, 22; Ping v. Cockyne, 37 Iowa, 211; Adae & Co. v. Zangs, 41 Iowa, 536.

It will be remembered that upon appeal from justices of the peace, cases are tried de novo upon their merits, and all errors, irregularities and illegalities are to be disregarded * * * if the cause might have been prosecuted in the Circuit Court. Code, section 3590. The intent of the statute is to secure justice by a trial of the appeal upon the very merits of the case without regard to errors or irregularities, if the Circuit Court may have jurisdiction of the parties and subject matter of the action. Errors and insufficiencies of pleadings cannot stand in the way. The pleadings may be amended or the errors disregarded in order to attain the purpose of the statute.

III. Counsel for defendant, insists that the order allowing the amendment is erroneous, for the reason that the plaintiff did not show excuse for not pleading before the justice, and no terms were fixed upon which the amendment was allowed. Upon these points the abstract before us is silent. In the absence of a showing to the contrary, we will presume that the court below correctly exercised its discretion, and if a showing or terms were required, points which we do not decide, they were properly made.

No other questions arise in the case. The judgment of the Circuit Court is

Affirmed.