116 S.E. 448 | S.C. | 1923
March 21, 1923. The opinion of the Court was delivered by The plaintiffs brought action on a promissory note against defendants, who in the title and caption of the complaint were designated and styled, "J.H. Caldwell and John L. Boyce, trading under the firm name of Caldwell Boyce." In the body of the complaint it was alleged that "the defendants made and delivered," to the plaintiffs the note sued on. During the trial the presiding Judge, Hon. W. H. Townsend, permitted the plaintiffs to amend the foregoing allegation of the complaint by inserting after the word "defendants" the descriptive phrase, "J.H. Caldwell and John L. Boyce, trading under the firm name of Caldwell Boyce." The defendant Boyce, who is the appellant *242 here, objected on the ground that he was thereby taken by surprise. From judgment for plaintiffs he appeals upon exceptions which impute error in allowing the amendment indicated.
Under Section 224 of the Code of Civ. Proc. 1912, it is well settled that an amendment may be allowed at or during the trial, when it does not so materially change the claim or defense as to result in prejudice to the adverse party:
"Where such amendments are asked for during the trial, if the opposite party would be misled or surprised thereby to his prejudice, it is incumbent upon him to make the fact appear by affidavit or otherwise, to the satisfaction of the Court; and, if that is done, the Court would either refuse the amendment, or granting it, would continue the hearing, or impose such other terms and conditions as it might deem necessary to prevent prejudice." Koennecke v. Railway,
We are of the opinion that there was no error in allowing the amendment in the case at bar. The question is essentially different from that involved in the case of Bischoff v. Blease,
If so, exercise of that power may only be impeached for manifest abuse of discretion. The record discloses no abuse of discretion. The defendants should have been prepared to meet any issue of fact involved in the plaintiffs' proof of the cause of action alleged. Aside from that, in view of the caption of the complaint, describing the defendants as traders "under the firm name of Caldwell Boyce," the defendants were scarcely in position to rest their contention as to surprise upon even a valid moral ground. See, generally,Walter v. Godshall,
The judgment of the Circuit Court is affirmed. *244