Sweet v. Mitchell

19 Wis. 524 | Wis. | 1865

By the Court,

Dixon, O. J.

The amendments proposed are the same which were offered at the first trial and refused, and the decision affirmed by this court. Sweet v. Mitchell, 15 Wis., 641. After the judgment was reversed and the cause remanded for a new trial as there directed, the plaintiff again moved, on notice, for leave to amend, founding his application upon the affidavit of his attorneys. The affidavit is, that the attorneys “ verily believed up to the time of the said trial that the plaintiff could recover and prevail by virtue of the parol contracts set forth in said complaint, without alleging fraud, as is now done in the proposed amended complaint, which said plaintiff, by his attorneys, is about to ask leave to make and file in said action; and said affiants also believed up to the time of trial, that such allegations of fraud were unnecessary to a recovery on the part of the plaintiff in said action, but they are now convinced to the contrary, and they believe such allegations of fraud are necessary and ought to be made, and that justice cannot be done to the plaintiff unless they are made.” The original and proposed amended complaints are both unverified; and the merits of the application depend solely upon the affidavit of the attorneys above set forth. The application is made under sec. 37, ch. 125, R. S. As to amendments before j udgment, the provisions of this section are in effect the same as those which existed before the enactment of the code. R. S. 1849, ch. 100, sec. 1. They are so regarded in New York, from which state we borrowed both the old and the present statute of amendments. Abbotts’ New York Digest, Title “ Amendment,” 1 to 12. The language of both is, that amendments may be made in furtherance of justice, and the rule has always been that some reason for applying to the court must be shown by affidavit or otherwise. Jackson v. Smith, 6 Cow., 39; Harrington v. Slade, 22 Barb., 161. And this, we think, is the defect in the present application, that it is not shown that the proposed amendment would be in furtherance of j ustice. There is nothing in the affidavit that tends in the slightest degree to show that the alleged new grounds of action exist, or that they could be established upon trial. The attorneys merely depose that before the trial they believed the allegations of fraud were unnecessary to a recovery on the part of this plaintiff, but that now they believe they are necessary and ought to be made, and that justice cannot be done to the plaintiff unless they are made. The latter allegation may afford some slight ground, but it is very slight, for the inference that their client, the plaintiff, had stated to them the facts constituting the fraud. But we think something more is required. The facts should be clearly and positively shown, not by the affidavit of the attorneys only, who, in general, cannot know them, but by the affidavit of the client, and perhaps of his witnesses. In cases like this, where the motion is made after a trial and after the defendants have been put to much trouble and expense, and where the proposed change in the ground of the action is so radical and complete, the application should be received with great caution. The question is one of discretion, depending upon the particular circumstances ; and how could the court below, or how can we, determine it unless fully possessed of the facts? We think that the least that could be required would be the usual affidavit of merits, and an affidavit of the truth of the proposed amendments, and then some reasonable excuse should be shown for their having been originally omitted. It is not of what facts will constitute a good cause of action on paper, but of the truth of those facts and the probability of their being established on the trial, that the court is to inquire, in order to satisfy itself that the granting of the application will be in furtherance of justice. We think, therefore, that the motion for leave to amend was properly denied.

We are also of opinion that the court was right in refusing leave to dismiss the complaint and action without prejudice. As to the lands conveyed by the plaintiff directly to Mitchell, and those acquired by Mitchell at the foreclosure sale on the Sage mortgage, final judgment had gone against the plaintiff. The court below had decided that the .plaintiff had no right to redeem those lands, and so far that decision had been affirmed. Sweet v. Mitchell, 15 Wis., 641. All the authorities agree that suits in equity may be dismissed at any time before final hearing and decree, but not after. The decision as to the lands conveyed directly and those acquired at the Sage foreclosure must be regarded as final, although the judgment was in form reversed, so as to enable the plaintiff to proceed in the court below with another branch of the case.

It followsithat if the court was right in refusing the plaintiff leave to dismiss without prejudice, he could not afterwards do so as of course by the entry of a common rule.

The defendants having noticed the cause, and it being called for trial, the plaintiff, insisting on the validity of the common rule and that the action was dismissed, refused to appear and prosecute. The defendants proceeded with the trial, and the court gave judgment in their favor on the merits, dismissing the complaint. The plaintiff insists that this was error, and that the complaint should either have been dismissed for want of prosecution, or the court should have given judgmSnt in his favor for a redemption of the land conveyed to Mitchell by Blossom, according to the former decision of this court.

It would be a little strange if the court were bound to give judgment in his favor in spite of his protestation that he was-not there, and that he had no action or claim depending before it. We think there was no error in this. And as to giving final judgment in favor of the defendants, we are of opinion, under the peculiar circumstances of the case, that it was proper. It seems to follow that if the plaintiff could not dismiss, the defendants might insist upon a trial; and that if the plaintiff refused to appear and put in iris evidence, judgment must go in favor of the defendants.

On the whole we are of opinion that the judgment below must be affirmed.

Downer, J., did not sit in this case, having been of counsel.