18 S.D. 317 | S.D. | 1904
This is an order granting to the defendants leave to serve and file an amended answer. ' The action was commenced in January, 1898, and was instituted to quiet title to certain lands described in the complaint. The action was tried in January, 1899, resulting in findings and judgment in favor of the defendants. On an appeal to this court the case was reversed, and a new trial ordered.. The remittitur from this court was sent down to the circuit court in April,' 1902. In February, 1903, the defendants, on motion, obtained the order appealed from, permitting the filing and substitution of the amended answer. In the original answer of the defend
In order to fully understand the questions involved on this appeal, a brief statement of the facts will be necessary. The action is one of a number growing out of an attachment suit instituted by Melvin Grigsby against Frederick T. Day in 1893. It is disclosed by the affidavits filed in support of the defendants’ application for leave to amend that said Day in the spring of 1893, and for some time prior thereto, was president of the Plankinton Bank, a corporation engaged in the banking busi
On the trial of the case at bar the court found that the quitclaim deed executed by Day and wife to the Plankinton Bank was given and intended as a mortgage to secure the payment of an indebtedness of Day to the bank in excess'of $175,-000, and that the lands described in the complaint were subject to this mortgage, which constituted a prior lien thereon. The case on appeal to this court was reversed upon grounds not material now to be noticed. It will be observed that in the amended answer the defendants have abandoned their claim of title in fee simple to the property, and claim that the bank had a lien upon the same by virtue of. the mortgage, and by virtue
It is contended by* the appellent that the court erred in granting leave to file the'amended answer, for the reason (1) that the application to amend was not made within time, and is not in futherance of justice; (2) that it appears from the affidavits on the part of the defendants that they were ignorant of the new matter alleged as a defense at the time the former answer was filed, and that therefore such matter could only be set up by way of a supplemental answer; (3) that it appears that the proposed amendments to the said answer will substantially change the nature of the defendants’ defense as to the material facts interposed by them at the former trial, and that the defense proposed by such amendments is substantially in conflict with the defense interposed by the original answer; (4) that the said proposed amended answer does not state facts sufficient to constitute a defense to the cause of action set out in the plaintiff’s complaint, and that the pretended counterclaim therein attempted to be set up is not permissible, within the terms of section 675 of the Revised Code of Civil Procedure; (5) that it appears from such amended answer that no new fact is alleged which was not well known -to the defendants at the time the original answer was filed, as shown by the affidavits and exhibits on the part of the plaintiff; (6) that the matter of the assignment of the claims of Melvin Grigsby to the bank as security for the payment of the note was fully determined in the circuit court of Minnehaha county in the action of
It may be stated as a general proposition that, under' the reformed system of pleading in this state; the granting of leave to amend the pleadings in'an action is largely in the sound judicial discretion of the irial court, and its rulings thereon will only be reversed in case of abuse of such discretion. The theory of the reformed system of pleading is that the case should be tried and disposed of, as far as possible, upon the merits, and that, -when justice requires an amendment of the pleadings in order to fully present the issues, the court should exercise its discretion liberally in granting such amendment. 1 Ency. P. & P. pp 516, 525. Amendments to answers are especially favored, and greater liberality will be exercised in allowing a defendant to amend his answer, than in permitting a plaintiff to amend his complaint. 1 Ency. P. & P. p. 518.
We are of the opinion that the delay in making the application for leave to amend was fully excused by the defendants, and that the court committed no error in holding that the application was made within the proper time, in view of all the circumstances connected with the case.
The second contention, that instead of.an amended answer the amendment should have been by way of a supplemental
The third contention that the proposed amendment to the said answer would change the nature of the defendants’ defense, and conflicts with the facts interposed at the former trial, is untenable. By section 150 it is provided the court may, before or after judgment, in furtherance of justice, amend any pleading by inserting other allegations material to the case,or, when the amendment does not change substantially the claim or defense, by conforming the pleadings or proceedings to the fa.cts proved, or to the facts in support of which proof is offered. The limitation as to not changing substantially the claim or defense is when the amendment is made on or after the trial by conforming the pleading or proceedings to facts proven, or to facts in support of which proof is offered. It follows that, when a pleading is amended prior to the trial, the amendment may change substantially the claim or defense. In Hall v. Woodward, 30 S. C. 564, 9 S. E. 684, the Supreme Court of South Carolina says: “The third exception is that the motion to amend was improperly granted, because by the pro
The fourth contention of the appellant, which'is, in substance, that the defendants’ alleged mortgage lien cannot be foreclosed in this action, is untenable. The action, as before stated, was instituted under the provisions of section 675 of the Code of Civil Procedure, which reads as follows: “An action may be brought by any person against another who claims an estate or interest in real property -adverse to him, for the purpose of determining such adverse claim.” It is contended by the appellant that under a similar section it has been held by the Supreme Courts of Minnesota and North Dakota that liens upon property cannot be adjudicated in an action brought
The sixth and last contention of the appellant, that the assignment by Grigsby of his interest in the property standing in the name of Day to the bank in March, 1893, contains no defense m this action, for the reason that that question has been determined in another action, is a matter that can properly be disposed of by a proper reply and evidence at the trial. Upon the last part of the contention — that the mortgage cannot be. properly foreclosed in this action — we have already expressed our views, holding that the counterclaim can properly be interposed by an amended answer.
After a careful review of the amended pleading allowed by the trial court, we cannot say that it abused its discretion by allowing the same, and the order appealed from is affirmed.