60 Kan. 509 | Kan. | 1899
The opinion of the court was delivered by
This case comes here from the court of appeals because one of the judges of that court was
From the record, it appears that Americus V. Jewett brought an action upon a promissory note against John F. Baxter, as principal, and Malott & Co., as indorsers, and recovered a judgment against Malott & Co. for $1044.65. The defense of Malott & Co. was that the petition contained no allegation of demand for payment or notice of non-payment and protest, and no reason or excuse why payment was not demanded and protest made. They took the case to the court of appeals, and that court held their defense to be good and that the petition of Jewett did not state facts sufficient to constitute a-cause of action. (Malott v. Jewett, 1 Kan. App. 14, 41 Pac. 674.) When the case was remanded to the district court the plaintiff filed an amended petition, in which he asked judgment for $1000, and which set forth certain preliminary facts and circumstances upon which he claimed that a cause of action upon a trust arose in favor of the plaintiff and against the defendants. The defendants who constituted the partnership of Malott & Co. moved the court for an order to strike the amended petition from the files because it was not in furtherance of justice and that it substantially changed the plaintiff’s claim. The motion was sustained, and the amended petition stricken from the files. Of this ruling the plaintiff complains.
We cannot say that the ruling was erroneous. While the courts are and should be liberal in permitting parties to amend their pleadings, they are not warranted in allowing amendments which substantially change the claim or defense previously relied on. (Gen. Stat. 1897, ch. 95, § 139; Gen. Stat. 1889, ¶ 4222.) The court of appeals correctly viewed the original petition
The court is vested with considerable discretion in the-matter of allowing amendments, and its ruling in granting or refusing leave to amend will not be disturbed unless there appears to have been a palpable abuse of discretion under all the circumstances. In view of the change in the form and character of the action by the proposed amendment and of the time and circumstances under which it was made, we think the court was justified in its ruling, and the same is hereby affirmed.