211 P. 564 | Ariz. | 1922
This action arose out of the following statement of facts: The Haekberry
By stipulation the three actions were to be tried together on May 4, 1921. The two actions for specific performance were dismissed by the respective plaintiffs, leaving the “Conspiracy Case” for trial. At the opening' of court a dispute then arose as .to which attorneys represented the Hackberry Consolidated Silver Mining Company. At the time the cause was called for trial the record showed that defendant Hackberry Consolidated Silver Mining Company was represented by C. C. Spicer, C. E. McDowell and E. E. Armour. All parties being ready for trial Mr. Dunnigan, attorney for Hackberry Consolidated Mines Company, made the announcement that he understood that the Hackberry Consolidated Silver Mines Company and the Hackberry Consolidated Mining Company were agreeable to judgment as
“be and he is hereby authorized to represent this corporation in connection with the litigation above referred to and to stipulate or consent to a judgment confirming or rescinding such contracts.”
This resolution was signed by G-. S. Holmes, C. W. Herndon and M. L. Loomis, designated as constituting a board of directors .of the Hackberry Consolidated Silver Mines Company.
During the recess the defendant Senate Silver Mining Company filed and served upon opposing counsel an amended' answer, setting up a cross-bill and insisting that the amendment should stand upon two grounds: First, that under the statute the defendant had the right to amend at any time before trial; and, second, that under the circumstances then arising, the court should permit the amendment and allow the case to go to trial on the merits.
The first assignment of error is based on the question whether or not the trial of the case had begun, as such question affected defendant’s right to file an amended answer. The statute covering the amendments of pleadings is section 422, Revised Statutes of 1913, which reads:
“All pleadings or proceedings may upon leave of the court be amended at any stage of the action within such time as the court may prescribe, or they may be amended before trial without such leave
It appears from the record that at the time the court was called at 10 o’clock on May 21st, a dispute immediately arose as to who represented the respective parties as • counsel. The time of the court was taken up during the forenoon session in listening to arguments of counsel pro and con. Finally, the court, in order to settle the question as to who did properly represent the company, made the following statement:
“I would like the hoard of directors to have a meeting and will pass on this question at 1:30 o ’clock. The court will stand at recess.”
We are of the opinion from the foregoing that the trial had not begun. But while holding this view the decision in this case is not based on that, fact but rests on the belief that the court abused its discretion in refusing to allow defendant Senate Silver Mining Company to file an amended answer under the circumstances.
It is strongly urged by appellant Senate Silver Mining Company that the trial court abused its discretion in refusing to permit the filing of an amended answer under the circumstances. The complaint charged a conspiracy and fraud on the part of defendants to absorb for themselves the assets of the Hackberry Consolidated Mining Company, and that the new company, Hackberry Consolidated Silver Mines Company, was formed for the purpose of accomplishing snch fraudulent design. The original answer of the Senate Silver Mining Company merely put all of these charges in issue without asking affirmative relief. The new Hackberry Consolidated Silver Mines Company had also answered to the same effect.
It is evident appellant was taken completely by surprise by the turn events had taken after the dismissal of its suit for specific performance that morning. It is further evident that it had relied upon a trial on the merits as defendant in the suit now here on appeal. No doubt counsel for appellant made a grave mistake in dismissing his suit for specific performance and relying on an answer in another suit. But if counsel made a mistake it would seem that their clients should not be made to suffer therefor.
The record shows that there is no evidence of bad faith on counsel’s part. It was simply a case of mistaken judgment and relying on a future course of events that turned out to be radically different from what was anticipated.
It is the opinion of the court that this was a proper case for the exercise of the discretion of the trial court by permitting the filing of the amended answer and cross-bill and thus compelling a trial on the merits. If not, appellant, who strenuously maintains that he has a good and valid cause of action, is denied his day in court through an inadvertence. The law favors a complete and fair trial on the merits, and to that end is liberal in the allowance of amendments.
“It is a general rule that amendments to pleadings are favored and shall be liberally allowed in furtherance of justice. The exercise of the power to permit amendments rests in the sound discretion of the trial court; and, as a rule, this discretion will not be disturbed on appeal except in case of an evident abuse thereof, or unless the appellant shows affirmatively that he was prejudiced by the ruling. It is the usual practice of the courts to allow rather than to refuse amendment.”
Furthermore, in speaking of the liberality of construction to be placed on the statute governing amendments to pleadings, this court has laid down the doctrine in no uncertain terms in the case of Perrin v. Mallory Commission Co., 8 Ariz. 404, 76 Pac. 476:
“A very good reason for the existence of this rule is that the plaintiff may take a nonsuit and commence another action, whereas the defendant, if denied the privilege of amending, might be without remedy. Our own statute relating to amendments is so liberal that it would be difficult to extend it by construction, and we are not at liberty to place upon it limitations which the legislature has not seen fit to prescribe.”
From the foregoing we are of the opinion that the able trial judge erred in refusing to permit appellant to file an amended answer. The order refusing permission to file the amended answer and dismissing the action as to appellant is therefore reversed and the cause remanded, with directions to permit appellant to file an amended answer.