Haynes v. Rice

33 Tex. 167 | Tex. | 1870

Lindsay, J.

The action in this case was founded upon a note, the stipulations, terms and conditions of which were fully set forth by making an accurate copy of it an exhibit. The execution of the note, as set forth, was not denied; nor were the terms and conditions of it controverted by the answer. The defense set up was payment, specifying in detail the mode and manner of the payment. The plaintiff then asked leave and amended his petition, in which he confessed several items of payment, and asked judgment for the residue. The cause was continued upon the affidavit of the defendant; and at the succeeding term of «the court, judgment was rendered for the plaintiff. A motion was made in arrest of judgment and overruled. At a subsequent day of the term, the defendant filed a petition, in the nature of a bill of review, and asking for a new trial, upon the ground of having discovered, after judgment rendered, thaff the note, which was made an exhibit in the plaintiff’s petition, was not the note executed by him to the plaintiff, but only a copy of it. Upon this petition, supported by the affidavit of the attorney, the new trial was awarded, and the cause continued. At the next term of the court, without formal leave of the court, the plaintiff filed an amended petition, alleging the loss of the original note, sustained by the affidavit of the agent of the plaintiff, who also made oath that the exhibit was an exact copy of the original note.' The amendment offered also to indemnify the defendant against liability on the original. To this amendment there was no response by the defendant, and judgment was again entered upon the calling of the cause for the plaintiff.

The case has been brought here by writ of error, and the ground relied upon for a reversal is, that the last amendment filed by the plaintiff was without leave of the court, and set up a new cause of action, upon which . the defendant was entitled to notice, or new service, without which the judgment was a nullity. This court cannot so consider it. Formal leave of court, upon the record, is not absolutely necessary, unless the effect of filing it would operate as a continuance of the cause. Erom the final action upon it the leave will be presumed. If the amepdment was in fact the setting up of a new cause of action, it would operate as a continuance; and in such case leave to file it must he had of the court, and that leave must he spread upon the record. But formal leave is not indispensable to the filing of amendments to make more exact, explicit, definite and perfect, the pleadings upon the cause of action really before the court. The discretion of the court in such matters will only be exercised to prevent surprise to the opposite party—the purpose of all pleading-being designed only to enable the court the better to attain the ends of justice; and this is always best attained by having the pleadings fully and accurately adapted to the facts relied upon by each party litigant. The cause of action in this case was identically the same after the amendment as before. It was for the consideration in the note , actually executed and delivered to the plaintiff by the defendant. The loss of the note did not change the cause of action. It only modified the remedial action of the court. The note was hut the evidence of the cause of action. By its loss, the evidence of the cause of action was varied, and only imposed an additional burden upon the plaintiff, as to his mode of proof, which certainly ought not to he cause of complaint to the defendant.

The defendant having been regularly brought into court by process, is, in legal contemplation, in court, until the final disposition of the cause, and is presumed to he cognisant of every step taken in its progress. Especially should the presumption he indulged in this case, when the defendant himself had procured the new trial. Surely he ought to have been present at the calling to attend to his new trial. The object of the amendment in this case was nothing more than to cure a defective statement in the original petition. The defendant, by his answer, had admitted the execution of the note, and it cannot be said that he had no notice of the nature and character of this moneyed demand. The rule laid down in Morrison v. Walker, 22 Texas, and Dewitt v. Snow, in 25 Texas, has no application to the facts of this case. The judgment is affirmed.

Affirmed.