Dixon v. Dixon

19 Iowa 512 | Iowa | 1865

Cole, J.

píeadisg : mmt. One of the just causes of complaint against the common law practice, as it existed prior to the Code, was that an error of the pleader, either in the parties or statement of the cause of action or kind of action, resulted in the defeat of the party and the dismissal of his 'cause, however clear and meritorious in reality his right of action may have been. To avoid these calamitous and unjust consequences was, at least, one of the promptings to the adoption of the more practical, liberal and just system of pleading and practice contained in our Code.

It is enacted, as a part of our system, that “ the court may, on motion of either party, at any time, in furtherance of j ustice, 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 any party, or by correcting a mistake in the name of any 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 pleadings or proceedings to the facts proved,” &c. Rev., § 2977. This provision, however, does not extend to every case or claim of amendment. The amendment, in the language of the Code, is to be permitted “in furtherance of justice." Harvey v. Spaulding, 7 Iowa, 428; Brockman v. Berryhill, 16 Id, 183; Allison v. Barrett, 16 Id., 278. That the proposed amendment shall be in furtherance of justice, is made an essential element by the language and spirit of the statute. If it is not necessary to enable the party to secure all his rights (Allison v. Barrett, supra), or is not substantial, or is a repetition of a former pleading (Harvey v. Spaulding, supra), or is evidently offered to trifle with the court, or to improperly gain time, or for any other reason not in furtherance of justice, the court not only may, but it becomes a duty to refuse it. As to the right to amend, vide Seevers, Administrator, v. Hamilton et al, 11 Iowa, 66, and authorities cited; Wadsworth, &c., v. Cheeny, Sc., 13 Id., 576 ; Mather v. Butler County, 16 Id., 59.

In this case it is evident from the finding of the jury that the claim of the plaintiff against the defendant is a meritorious and valid one. The jury found that the defendant justly owed the money; but in the opinion of the court below, the technical right to recover was not in the plaintiff, and thereupon the plaintiff, being interested, sought to amend, by adding the name of his partner, or firm name, and thus bring his right to recover within technical law as well as resting it upon broad justice. There is one fact of controlling- influence in the determination of this case, ana that is, it appears from the papers in the case, that unless the plaintiff is permitted to amend and continue the prosecution of the claim in this suit, it will be barred by the statute of limitations. The jury have found that the defendant justly owes the claim, and to permit the plaintiff to amend and recover such just claim will be very evidently more in the furtherance of justice than to refuse the amendment and dismiss the action as did the court below, and thereby defeat the recovery of.a claim, the justice of which has already been established.

Reversed.