No. 10,083 | Neb. | Oct 1, 1901
Frank A. Gage commenced an action to replevy certain cattle from Clara E. West, who, in her answer, alleged that she had taken the cattle under a chattel mortgage given by Gage to her to secure a promissory note of his. In reply. Gage admitted the execution and delivery of the note and mortgage, but alleged a failure of consideration,
The court below abused its discretion in refusing to permit plaintiff to amend his reply. It is the settled law of this state that the power to permit or refuse amendments of pleadings is discretionary with the trial court; but this is a legal discretion which may be abused when an amendment is refused which is clearly in furtherance of justice. Mills v. Miller, 3 Nebr., 87, 95; O’Dea v. Washington County, 3 Nebr., 118, 122; Berrer v. Moorhead, 22 Nebr., 687, 692. The amendment offered falls clearly within the principle announced in these and many other cases decided by this court. The judgment is therefore reversed and the case remanded with leave to plaintiff to amend his reply and for further proceedings.
Reversed.