2 Mont. 415 | Mont. | 1876
Lead Opinion
This was an action to foreclose a mortgage, executed by defendant Preston to plaintiff, to secure the payment of a contract for 61 ounces, 2 pennyweights and 6 grains of gold dust, signed by defendant Thornton as surety, and for a deficiency judgment in case the mortgaged property, upon sale thereof, did not pay the debt.
The defendant Thornton in his answer sets up the defense that he signed the contract with Preston as surety merely, and that plaintiff for a valuable consideration entered into an agreement with Preston to extend the time for the payment of the contract for gold dust for the period of thirty days.
To this answer the plaintiff replied, denying its allegations as to any agreement to extend the time of payment, and asking judgment as in the complaint. The cause was tried to the court without a jury, by agreement of parties. At the conclusion of the testimony, the following extract from the record will show what occurred: “ Here the testimony closed, and the case was argued
and submitted to the com-t, who took the same under advisement. Before the case was submitted defendant Thornton moved the court to declare and find that the plaintiff had not denied the contract for extension of time for thirty days, for a valuable consideration. And afterward, to wit: on the 22d day of April, 1875, and before the court had passed upon the sufficiency of the replication, made its findings or rendered its judgment in the cause, plaintiff moved the court, upon affidavit, showing cause therefor, for leave to amend the replication herein.” Then follow the motion, affidavit and order of the court overruling the motion. Thereupon, on the 4th day of May, 1875, the court made its findings of fact, and rendered judgment in the case, among which findings are the following :
“ 1. That under the pleadings it is admitted that the plaintiff, for a valuable consideration, agreed with the defendant Preston to extend the time of payment of said contract for thirty days.
“ 2. The court finds that the defendant Thornton was not a party to this agreement for extension of time, and that the same was made without his knowledge or consent.”
The exact day when the cause was tried does not appear from the record, but it does appear that the question as to the sufficiency
"We are unable to see, and there is nothing presented in tbe record to show why tbe plaintiff was not permitted to amend bis replication, as bis affidavit showed that be well could, so as to make tbe issues in tbe pleadings correspond with tbe proof. Even after verdict, and after judgment, in furtherance of justice, pleadings may be amended. "We think this case comes within tbe decision of tbe case of Wormall v. Reins, 1 Mon. 630, where it is beld: “ Tbe court may, in furtherance of justice, and upon such terms ás are just, allow tbe amendment of any pleading at any stage of a proceeding. This power is a discretionary one, and this court cannot review tbe exercise of tbe same unless there has been some abuse of that discretion. Courts have frequently permitted pleadings to be amended even after verdict and judgment, to correspond with proofs in tbe case, and I can sée no reason for refusing to allow tbe amendment of a pleading to make it correspond with tbe proofs, before tbe case is submitted to a jury.”
Tbe case under consideration’was tried to tbe court by agreement of parties, but tbe same rules are applicable to it, so far as amendments of pleadings are concerned, as if it bad been tried to a jury. If, upon a trial to a jury, at tbe conclusion of tbe testimony, upon an issue that both parties bad supposed tbe pleadings presented, tbe defendant should move tbe court for judgment upon tbe pleadings, because tbe replication failed to deny tbe defense set up in tbe answer, tbe court would necessarily pass
Tbe respondent, in Ms brief, contends that tbe record does not state tbe facts, and that tbe appellant, upon tbe trial, was granted leave by tbe court to amend bis replication, wbicb be declined. If there was any thing in the record upon which we could base a well-grounded suspicion that tbis was tbe case, tbe judgment would be affirmed at once, for parties cannot refuse to amend pleadings when tbe opportunity is given at tbe right time, and then, upon an intimation of a decision against them, claim tbe privilege. But we bave given a faithful representation of tbe facts contained in tbe record, and there is no intimation contained in it that tbe plaintiff ’ ever bad an opportunity to amend bis pleadings. It is needless to say that we must determine tbe case upon tbe record presented here, but we must add that, if tbe facts are as represented, tbe attorney for tbe respondent is responsible for their omission from tbe transcript. Tbe statement, upon motion for a new trial, which purports to contain a complete record of tbe case, was settled and agreed upon by tbe attorneys of tbe parties as correct, and tbe court was not called upon to settle sucb
Judgment reversed and cause remanded.
Judgment reversed.
Dissenting Opinion
dissenting. I feel called upon to dissent in this case from the opinion expressed by a majority of the court. It is agreed that the record does hot show the date of the trial of the cause. It does show, however, that on the argument of the cause plaintiffs attention was called to the fact that his replication did not fully traverse the answer of the defendant Thornton. The record then goes on to set forth as follows: “ And afterward, to wit, on the 22d day of April, A. D. 1875, and before the court had passed upon the sufficiency of the replication, made its find, ings or rendered judgment in the cause, plaintiff moved the eourt-upon affidavit showing cause therefor, for leave to amend his replication herein.” I submit, that by no faff construction of this language can it be made to show that the application to amend the replication was made before the cause was submitted on its merits. It states what events had not taken place in the case when plaintiff applied to amend his replication. The submission of the cause is not one of them. The events named might all have occurred after the submission of the cause. The record ought to show, affirmatively, error, before a cause should be reversed.
All presumptions in an appellate court should be in favor of the correctness of the ruling in the court below.
As the record does not disclose that this application was made to amend before the cause was submitted on its merits, this court ought to presume that it was made afterward. It certainly ought not to presume that it was made before that event. Taking as a basis that this amendment was applied for after the cause was submitted, was there any abuse of discretion on the part of the court below in refusing to grant the plaintiff permission to amend his pleadings ? His attention had been called to the fact that his replication did not fully traverse defendant Thornton’s answer. He chose, notwithstanding this, to submit the case as the plead
In my judgment to allow an amendment at such a stage, under such circumstances, would be a gross abuse of the legal discretion conferred upon a court in relation to that subject. Certainly, it ought not to be considered an abuse of discretion to refuse to allow said amendment at that time. There is no difference in principle between a case submitted to a jury and. one submitted on its merits to the court.
As I view this case the majority of the court have held in fact, whether or not they so intended to hold, that whenever, at any stage of the proceedings, a party comes into court and shows that he has a good defense, which his attorneys have failed to set up, even though the stage should be after the cause was submitted to a jury or court, on its merits, the party should be allowed to amend and set up this defense. And if the court should refuse to allow this it would be guilty of a gross abuse of its legal discretion. ' .
Such a rule I cannot acquiesce in. The ease of Wormall v. Reins, 1 Mon. 630, is not in point. That was a case where the cause was tried as though a certain issue was made in the pleadings, which was not. When it was discovered that it was not the plaintiff applied for leave to amend the pleadings so as to make this issue. This amendment was applied for and made before the cause was submitted to the jury. The granting permission to make this amendment was assigned as error by the defendant. This court held in that case that there was no abuse of discretion in allowing this amendment. But it did not hold that if the court had refused to allow this amendment it would have been guilty of a gross abuse of judicial discretion. Nor is this the case where a cause was tried and evidence introduced on both sides, as
Believing that either of these rules would be wrong, and contrary to the whole current of legal authorities upon the subject, authorities upon these points that are so well known to the profession that I need not quote them, I hold that the judgment of the court below ought to have been confirmed.