Harvey v. Spaulding

7 Iowa 423 | Iowa | 1858

Woodward, J.

The plaintiff presents many authorities to show that amendments are in the discretion of the court, and that the permission or refusal, constitutes no ground of error; and that an appellate tribunal will not control that discretion. • But the question is, whether the Code changes the law in any respect, or to any degree. And we believe it does. .

The Code, (section 1755), intends to permit amendments liberally, upon terms prescribed. But the right cannot be without limit, and without restraint. It is not wholly withdrawn from the control of the court. The party amended once, and this was held to be insufficient. He asks to amend again, but he does not show what the proposed pleading was to be. Suppose it were the same with the former, or with the original, or frivolous. The court must exercise the discretion to see that it is substantial, and that it is nota repetition of the former pleading. It does not appear that the defendant tendered an amended pleading, and it is not made known to this court, what the amendment was which he desired to make, so that we are unable to- determine whether substantial matter was rejected. Whilst the inclination of our minds is to the opinion, that a party may amend, upon proper terms, until he finds that he cannot plead a sufficient defense, (and the like in other pleadings), yet, where he has amended once, and seeks to do so again, he must show that the change which he offers to make again, is a substantial one. As this was simply a request for leave to amend the second time, without showing the amendment proposed, it is not made to appear that the court erred in refusing it.

As we have before remarked, in the case of Bebb v. Preston, 3 Iowa, 326, the permitting amendments goes no further than the dismissal of a cause, and allowing a party to begin again, but it keeps him in court. And while the subject of cost is under the control of the court, it would seem that no injury is wrought to any one. The case of Bebb v. Preston does not present the subject in the same bearing. That was the question whether a party could amend at a certain stage of the cause.

Eor the reason before given, the judgment of the district court is affirmed.