44 Iowa 300 | Iowa | 1876
The foregoing somewhat lengthy statement is necessary to a fair understanding of the question made in this case.
Instances where additional pleadings should be allowed after an equity case has been tried anew on its merits in this court, and remanded to the court below, are exceedingly rare.
It is true that the court may at any time in furtherance of justice, and on such terms as may be proper, permit a party to amend any pleading or proceedings. Code, Sec. 2GS9.
There are undoubtedly cases where, upon procedendo, amendments should be allowed. In the case of Jones v. Clark & Clark, 34 Iowa, 590, the decree of this court found the defendant to be the owner of certain personal property, then in the possession of the plaintiff. The plaintiff’ refused to deliver the property to defendant, but converted it to his own use.
It was held that the District Court should have allowed the amendment to be made. This was a case where the amendment was made necessary by a fact transpiring after the trial of the case in this court, to-wit: the.refusal to deliver the property in compliance with the judgment. Other circumstances might occur where amendments should be allowed upon the procedendo being filed, but in our opinion this case does not present such a state of facts as to render the proposed amendment either proper or allowable.
This has been a long controversy, including the whole conduct of the defendant, Howe, as administrator. He pleaded and relied on the settlement made with the county court, and well knew that the claim he now makes had been allowed, and we are unable to perceive any objection that could have been made to his setting up the claim before 'the trial of the case in the court below.
No showing is made why this was not done. It would be a vicious practice, for a party to present part of his case, and after a trial in the nisi jprins court, and a trial anew in this court, to allow amendments to be made presenting issues which should have been presented in the first instance.
The estate so far as it is situated in Illinois is unsettled, and it appears there is a large amount of property there. If defendant has a valid claim against the estate, let him present it there on the settlement to be made by him as administrator.
Affirmed.
