153 N.W. 470 | N.D. | 1915
The plaintiff served his complaint in county court, alleging that the defendants executed and delivered to him their promissory note in the sum of $110, with interest at the rate of 12 per cent after date. For answer, defendants admit the execution and delivery of their note for $110; but allege that the note was given, to secure the sum of $100 borrowed by defendant, and the charging of interest on the said sum of $110 is usurious, and that the said.
The Court: You can ask the court to have the case reopened. How long would it take you to determine ?
Mr. Skulstad: If it please the court, I want to demur to this answer.
• The Court: What is going to be the ground of your demurrer? You know the statutory grounds for demurrer. Which are you going to urge?
Mr. Skulstad: Por the reason that the same fails to set out an action ór a defense to the complaint herein.
The case was submitted to the jury, who found for the defendant. .Plaintiff appeals, alleging two groups of errors:
(1) Appellant alleges that “the court erred in holding, evidently, that the original pleadings were in effect at the trial.” As will be .gathered from the foregoing statement of facts, the original complaint was upon a promissory note for the sum of $110. This was answered with the plea of usury. Thereupon the plaintiff filed an amended 'complaint, claiming the note was for $100; but by mistake it had been written $110; and to this an amended answer was interposed, in the nature of a general denial. It was evidently the intention of the defendants that this amended answer should go merely to the new portions of the complaint; that' is, it denied that the note was taken by mistake for $10 more than the amount borrowed. During the -course of the trial, the trial judge and defendants’ attorney clearly apprised plaintiff that this was their understanding of the pleadings. We believe the trial court erred in holding usury to be a plea at the time the ruling was made, but the same was cured as shown in paragraph two.
(2) Error is predicated on the allowance of the amendment to the answer to the amended complaint. We are satisfied that there is no error in this ruling. To begin with, usury was the defense at the beginning of the lawsuit. Defendants never intended to abandon the same, and never gave plaintiff to understand that such defense was abandoned. Filing of the general denial was intended to operate as a supplemental answer, denying the new matter set out in plaintiff’s •complaint. In this he .was mistaken, but it is a circumstance showing lack of prejudice to plaintiff’s rights. Section 1482, Comp. Laws 1913, provides that “the court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process,, or proceeding, by adding or striking out the name of any party; ‘or by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or, when' the amendment does not change substantially the claim