Dehnel v. Komrow

37 Wis. 336 | Wis. | 1875

Lyon, J.

This appeal presents but two questions for determination: 1. Does the complaint state a cause of action ? and 2. Ought, the judgment to be reversed because the court refused to allow the defendant, by amendment of his answer, to interpose the defense of the statute of limitations ?

The first question must be resolved in the affirmative. A person of common understanding may know from the complaint that the plaintiff’s claim in the action is for money loaned by him to the defendant, and for interest thereon. (Tay. Stats., 1362, § 51, subd. 5.) The omission of the date of the loan does not go to the cause of action. If the complaint does not give the particulars of the plaintiff’s demand with sufficient certainty, the court had power to compel him to make it more specific, and would doubtless have done so in this case, had the objection been taken. (§ 51, subd. 7.)

The second question must be answered in the negative. It was in the discretion of the court to allow or refuse to allow the amendment to be made. Eldred v. The Oconto Co., 30 Wis., 206; Meade v. Lawe, 32 id., 261; and cases cited. If the ruling of the circuit court in refusing to allow the proposed amendment .can be .reviewed on appeal, the judgment should not be disturbed unless such refusal was an abuse of discretion. We cannot say that it was an abuse of discretion, in view of the fact that it was abundantly proved on the trial that, recently before the action was commenced, the defendant made a payment on the interest of the loan which is the .subject matter of tbe suit. This evidence, unless successfully controverted, would have entitled the plaintiff to a verdict, even though the statute of limitations had been answered as a defense to the action. Cleveland v. Harrison, 15 Wis., 670. Besides, the defendant failed entirely to excuse his omission to interpose that defense earlier in the progress of the cause.

By the Court. —Judgment affirmed.