130 Wis. 72 | Wis. | 1906
We shall spend little time upon the questions of fact in the present case. Examination of the bill of ■exceptions satisfies us that the court was entirely justified in holding that it was clearly proven that a mutual mistake was made by Chloupek and the plaintiff at the time of the plaintiff’s purchase, and that the tract actually pointed out to the plaintiff by Chloupek and supposed- by both parties to be bought and described in the deed afterwards delivered was the tract inelilded within the dotted lines in the plat.
There are two other questions in the case, however, which demand some consideration. The appellant claims that it is conclusively shown in the case that the property in question was a part of the homestead of Adolph Chloupek and Anna Chloupek at the time of the sale, and hence that equity will not reform the deed against the husband in his lifetime nor against his widow. If this fact does appear in the evidence and the evidence is properly in the case, it seems difficult to avoid the conclusion claimed. Petesch v. Hambach, 48 Wis. 448, 4 N. W. 565; Conrad v. Schwamb, 53 Wis. 372, 10 N. W. 395. The serious difficulty arises, however, upon the
The whole principle of the Code iindoubtedly is that amendments should be allowed liberally, that substantial rights should not be lost on account of mere failure to plead in apt terms or within the time limited by statute, if the substantial rights of the opposing party can be preserved. We should have been better pleased had the amendment been allowed and the question whether a homestead right existed determined. However, the specific objection had been promptly made early in the trial and the court had at once made a ruling showing that in his judgment an amendment was imperative. The defendants chose to stand on their pleading through the entire trial and for months after the trial had been concluded. Furthermore, it appeal’s that the defendants made a proposition of settlement by way of exchange of lots and removal of buildings and payment by plaintiff of $100, in their answer and at the opening of the trial, which the plaintiff refused to accept. It seems likely that this refusal was based partly on the failure to plead the defense of homestead. Had the defendants made their application to amend when the objection was first made and they were notified that amendment was necessary, it may well be that the plaintiff would have accepted the offer and spared himself the expense of further trial of the case. Such considerations as these in addition to those named by the trial judge induce us to hold, with some reluctance, that there was no abuse of discretion in refusing to allow the amendment.
Another contention is made to the effect that it appears that Mrs. Chloupek only signed the deed as the wife of Adolph, that she received no consideration therefor, and that
By the Court. — Judgment affirmed.