15 N.M. 1 | N.M. | 1909
Lead Opinion
OPINION OP THE COURT.
’(After stating the facts.) — The only question discussed in the brief for the appellant is that raised by the refusal of the trial court to allow him to amend his answer as above stated, to conform to sub-sec. 307 of See. 2685, C. L. of 1897, (See chapter 107, Laws of 1907) which provides that: “When an instrument of writing upon which the action or defense is founded is referred to in the pleadings, the original or a copy thereof shall be filed with the pleading, if within the power or control of the party wishing to use the same, and if such original or a copy thereof be not filed as heroin required or a sufficient reason given for failure to do so, such instrument of writing shall not be admitted in evidence upon the trial.” While it is true, as the appellant claims, that the power of the courts to allow amendments is very broad it is also true that they are allowed a very broad dieretion in exercising that power. The provision in sub-sec. 82, sec. 2685, Code of Civil Procedure, C. L. 1897, that the court inajr “at any time before final judgment m furtherance of justice, amend any pleading by conforming the pleading, to the facts proved,” puts on the trial court the dut}r of determining whether an amendment proposed will, on the whole, be “in furtherance of justice,” not alone to the party proposing the amendment but to his opponent as 'well, who may, through an amendment, suffer injustice. In the ease at bar the answer of the defendant had been once amended, and the case sent to a referee and heard by him before the amendment in question was proposed. The plaintiff had the right to rely on the pleadings as they stood in the preparation of its case for trial, and on the protection of the court against injury from eleventh hour amendments.
There was, moreover, evidence tending to establish at least an equitable estoppel in favor of the plaintiff against the claim of the defendant under the mortgage which he sought to introduce through amendment. Under such circumstances, we cannot say it was an abuse of discretion for the trial court to refuse to permit the amendment. 3 Cyc. L. & P. 327, and cases cited; Gormley et al. v. Bunyan, et al., 138 U. S. 625; Sawyer v. Piper, 189 U. S. 155. The rule laid down by the Supreme Court of the United States has, as a matter of course been followed by this court and recently affirmed in Home Savings Bank v. Woodruff, 94 Pac. Rep. 957, and Puritan Mfg. Co. v. Toti, et al., 94 Pac. 1022.
We have assumed that the trial court could have granted the defendant’s motion to amend in the exercise of its power to permit amendments of pleadings, but it has been held in relation to a statute provision similar to the one under consideration, that such a paper as the defendant desired to lile is not a part of the pleadings. As that view of the matter is not treated of in the briefs on which this case was submitted; and is of such importance that this court should not pass on it without full discussion and consideration, we go no further than to say that the reasoning in favor of it appears to have much force, and, if it is sound, it may follow that the defendant’s motion could not have been rightfully granted. Han. & St. Jo. R. R. Co. v. Knudson, 62 Mo. 569, and cases cited; Chambers v. Carthel, et al., 85 Mo. 374.
The judgment of the District Court is affirmed.
Concurrence Opinion
(Concurring) — I concur upon the ground that the appellant showed “no sufficient reason” or any reason at all for his failure to file with his pleading a copy of the mortgage relied upon as required by C. L. Sec. 2685.
