76 P. 992 | Idaho | 1904
This is an appeal from an order denying appellant’s motion to amend its answer and to file its cross-complaint and from the judgment. This case was before this court on appeal at its November, 1902, term, and the decision
The facts of the ease quite fully appear in the opinion in 8 Idaho, and 70 Pac., supra, from which it appears that the plaintiff and one Squires & Stone purchased from the appellant a threshing outfit, and afterward, to secure the payment of the purchase price thereof, a mortgage was executed by said Kindall, Stone & Squires. The appellant sought to foreclose said mortgage by notice and sale, and Kindall and his wife procured an injunction to prevent such sale. It was thereafter determined that a part of the property so mortgaged was community property, and that the chattel mortgage was void as to such property, for the reason that the wife of Kindall had not signed the mortgage. In that injunction proceeding the appellant here, did not, by cross-complaint or otherwise, claim any affirmative re
It appears from the transcript that the appellant filed no cross-complaint or prayed for any affirmative relief, or sought to do so, until after the case had been tried and decided by the court. It also appears that this case has been pending for some three or four years, and we do not think the court abused its discretion in refusing to permit the appellant to amend the prayer of its complaint or to file a cross-complaint. The motion to amend and to file a cross-complaint was not presented to the court until after the case had been tried, and if after that the court had permitted that to be done, it clearly appears from the record that a retrial of the case would have been necessary. The court finds by its findings of fact that one of the promissory notes referred to had not been paid, to wit, the one for $300, and also found that there were $35 due on the $400 promissory note, with interest on each. The appellant prays in the proposed cross-complaint for judgment in the sum of $200, with interest at the rate of eight per cent and $50 attorney’s fee. This would indicate that there was not as much
Under all the circumstances and facts of this case the trial court did not err in denying the motion referred to. There must be an end to litigation, and as this case was pending for more than three years prior to the action of the court complained of, and if the court had granted the motions referred to, a retrial of the whole case would have been necessary, under those facts the court was fully justified in denying said motions. The judgment of the trial court is affirmed, with costs in favor of the respondent.