148 N.W. 597 | S.D. | 1914
One Coates, a resident of Wisconsin, held a mortgage upon the land in controversy, viz., a quarter section in Turner county. He died leaving a will which was probated in Wisconsin. The foreign will was admitted to probate in Yankton county, and the widow was appointed as administratrix with the will annexed. The mortgage was foreclosed and sheriff's deed issued to the widow as such administratrix. The widow and all of the heirs and devisees, except a son, Willie M. Coates, conveyed the Turner county land to defendant’s grantor in 1899. The. will provided that said son Willie was to' receive $50, “which is all that he is to have out of my estate.” 'The final distribution of the estate in South Dakota was Imade after the above conveyance to the defendant’s grantor, and the land in 'question was not included in such final decree; but certain other real estate was therein described, and the undivided two-fifteenths of such described real estate was
This action was begun to- recover from the defendant the said sum of $100. The answer in substance alleged that plaintiff had no interest in the land and knew it had none and was attempting to extort money from defendant. During the trial the answer was amended much along the same line. At the 'conclusion of the trial, plaintiff moved for a directed verdict. Thereupon defendant asked leave to amend his answer so as to allege a -mutual mistake of the parties in the transaction. The learned trial -court granted such leave and then denied plaintiff’s motion. Thereupon the defendant moved for a directed verdict, which was granted. Judg- - ment was entered in favor of defendant. A motion for a new trial was denied. Plaintiff has appealed from the order denying a new trial and from the judgment.
We are of the opinion that the granting of leave to. amend was a proper exercise of the discretion of the trial court. This matter has been discussed so thoroughly in Wolfinger v. Thomas, 22 S. D. 57, 115 N. W. 100, 132 Am. St. Rep. 900, that we merely refer thereto for our reasons. Plaintiff claims that it was prejudiced by such amendment. We fail to see it. Plaintiff claims that
“If these admissions had not been made, the plaintiff could easily have proved on the trial of this action that plaintiff did not have and never claimed to have any title to the defendant’s land whatever.”
This argument proves too much. If plaintiff had made such proof defendant would have been entitled to . recover under his. answer as it stood before the last amendment. The amendment did not require or call for any other or further proof on the part of plaintiff. Plaintiff was not prejudiced by the granting ,of the amendment..
The judgment and order appealed from are affirmed.