P. Schoenhofen Brewing Co. v. Armstrong

89 Iowa 673 | Iowa | 1894

G-ranger, C. J.

i. pleading: ltednwímonut wfllnfmoRen from flies. I. In the original petition, as filed, the value of the liquors was placed at four hundred ar>cl eight dollars and thirty cents. The petition was filed July 7, 1890. In the answer, filed December 17, 1890, the yaiU6; as alleged, is denied. On the seventh of March, 1891, the answer was amended, admitting the value as alleged. On the same day, after the jury was impaneled to try the issues, the plaintiff, without leave of court, "filed an amendment placing the value of the liquors at one hundred and one dollars., which amendment was? on motion of the defendant, stricken from the files, and the action of the court in so doing is assigned as error.

Some four grounds were stated in the motion for the court’s action. The first is: “That it was -filed without the leave of the court first obtained.” If the court would have been justified in refusing leave, if asked before filing, it was justified in striking the amendment because filed without leave, and that method of considering the question will certainly be fair to the appellant. Conceding the liberality of the rule as to amendments, they are always to be. allowed in furtherance of justice. Code, section 2689. The ruling of the court must have been made in view of the facts that, when the amount was fixed in the petition originally, the plaintiff, if successful in the suit, might be required to accept a judgment for the value of the liquors, and it then very precisely stated the value as four hundred and eight dollars and thirty cents. When the plaintiff filed the amendment, the situation had so changed that, if the defendant should be successful, it might be required to pay the value of the liquors, and it then sought to change the averment as to the value, and fix it at one hundred and one dollars, “and no more.” The amendment contains no statement that the averment in the original petition was made through inadvertence or mistake, and the two statements seem to have been intentionally made, and the latter just at the moment of proceeding to trial. The conclusion in the mind of the court, with, such a condition of- the record, is not difficult to understand, and it certainly does not appear that the amendment should have been permitted in furtherance off justice. Amendments at such a stage of the proceedings are allowed within the sound discretion of the court. Clough v. Adams, 71 Iowa, 17. The court is vested with a sound discretion as to striking amendments from the files. Wyland v. Mendel, 78 Iowa, 739. The action of the district court in striking the amendment was not an abuse of its discretion.

2. replevin: ^ndefsiarcii811 warrant. II. The facts as to the liquors being taken from the defendant sheriff while in his custody, by virtue of a search warrant, appear conclusively from the record. These facts bring the eage c¡eariy within the rule announced in Lemp v. Fullerton, 83 Iowa, 192, and Anheuser-Busch Brewing Ass’n v. Fullerton, 83 Iowa, 760. It is true that in this case, at the trial in the district court, these facts were disregarded, or not noticed, and .the cause was determined on other issues. In this court the appellee urges that, regardless of the errors assigned, these facts, and the law applicable thereto, control, and the case must be affirmed. The appellant urges that the cause should be here only upon the issues submitted to the jury as to which errors are assigned. Why the case was tried below without reference to this controlling question we are not informed. With the state of the record, had the attention of the court been called to it, a verdict for the defendant should have been ordered. We notice that, when the cause was tried in the district court, the case of Lemp v. Fullerton had not been determined in this court, and the present situation may be the result of a mutual misapprehension as to the law applicable to the facts. However that may be, such law must control in .this case, and, should the case be reversed on some errors assigned, the district court must then apply the law, and enter judgment for the defendant, and the result would be a reversal because of errors not prejudicial. To our minds the question is not a doubtful one, and the judgment will stand affirmed,