57 Iowa 490 | Iowa | 1881
We have several times held on motion, where no opinion was filed, that although an appeal had been perfected a party might appear in the court below and have the record perfected. It is not essential to this right that leave should be given by this court. The essential thing being to have the record perfected. Substantially that is what was done in this case. The Circuit Court made no ruling nor did it take jurisdiction of the case, except to do that which it had stipulated might be done. The motion must be overruled.
At the close of the argument of the counsel of the defendant to the jury, counsel for the plaintiff were informed that an instruction in substance had been asked, that if the jury found the plaintiff had a lien on or qualified interest in the horse instead of being the owner, as alleged in the petition, he could not recover. Upon an intimation from the court the instruction would be given, plaintiff asked leave to file an amended petition alleging that at the commencement of the action he was entitled to the
Counsel for the appellant insist the instruction was erroneous as the pleadings stood at the trial, but we shall not stop to determine this question, because we think, under § 2689 of the Code, the court erred in refusing to permit the amendment to the petition to be filed so as to conform it to the established facts. It has been said more than once. by this court that to allow amendments to the pleadings is the rule, to refuse, the exception; and while a discretion in this respect is reposed in the District or Circuit Court, such discretion is of a legal character and will be reviewed on appeal. No two cases are precisely alike and therefore no beneficial result would follow from a citation of the numerous cases which support the above proposition. See, however, Hinkle v. Davenport, 38 Iowa, 355.
The affirmative fact that the plaintiff was a mortgagee only was not stated in the answer, although the defendant had knowledge of such fact. The first knowledge the plaintiff had the defendant would so claim was after the plaintiff had rested his case, and when this claim was made the controversy between these parties was as to who was entitled to the possession of the horse under their respective liens. So, too, under the petition and answer the issue was the same, that is, who was entitled to the possession. The ground upon which the plaintiff claimed the possession, while material, was not the main thing. The “substantial claim” was as to the possession, and this was not changed by the amendment proposed to be filed. As the defendant introduced evidence showing the plaintiff was a mortgagee he could not be prejudiced or surprised by allowing the amendment, and in fact no such claim is made.
By allowing the amendment justice will be promoted and the real merits of this controversy determined.
Reversed.