Lister v. McNeal

12 Ind. 302 | Ind. | 1859

Davison, J.

Delilah Chapman brought an action against Daniel Lister for slander. Pending the suit, the plaintiff intermarried with William McNeal, who, on motion, with his wife, was made a joint plaintiff.

The complaint, after alleging an appropriate colloquium, avers that the defendant, on, &c., at, &c., falsely, &c., spoke and published, of and concerning the plaintiff, these words: “Old Ja/ne White caught Elzey White and the girl, Lile Chapman (meaning the plaintiff, Delilah), in the barn at the thing itself—“ Jane White caught Elzey White and Delilah Chapman at the thing itself—thereby meaning, &c.

Defendant answered in three paragraphs, to which the plaintiff replied. Demurrer to the replies overruled.

The issues were submitted to a jury, who found for the plaintiff; and the Court, having refused a new trial, rendered judgment, &c.

In a bill of exceptions, it is alleged that, after the jury were impanneled, the Court, the defendant objecting, permitted the plaintiff to amend his complaint by inserting therein the following: “ George Dean said old Jane White caught Elzey White and the girl (meaning the plaintiff, Delilah), in the barn at the very thing itself.” And further, after the evidence and arguments of counsel had been submitted to the jury, the Court, over the defendant’s objection, allowed the plaintiff to amend by striking out, from the first alleged set of words, the words “ Lile Chapman,” and inserting in lien thereof the words “the girl, (meaning the plaintiff, Delilah).”

W. Garver and J. E. Lewis, for the appellant. J. Green, for the appellees.

It, is enacted that “the Court may, at any time, in its discretion, and upon such terms as may be deemed proper, direct the name of a party to be added or struck out; a mistake in name, &c., to be corrected; any material allegation to be inserted, struck out, or modified; to conform the pleadings to the facts proved;'when the amendment does not substantially change the claim or defense.” 2 R. S. p. 48, § 99.

Neither amendment seems to have constituted any material change in the plaintiff’s cause of1 action. The first merely adds the words “ George Dean said;” and the second simply strikes out the words “ Lile Chapma/n.” Both, in our opinion, are plainly-within the discretionary power conferred on the Court by the statutory rale of practice to which we have referred. 9 Ind. R. 554. And the ruling of the Court must, therefore, be sustained.

Per Curiam.

The judgment is affirmed with 5 per cent, damages and costs.