White v. Shumate

50 Miss. 130 | Miss. | 1874

Peyton, O. J.,

delivered the opinion of the court:

This is a writ of error from a judgment of the circuit court, dismissing an appeal from the judgment of a justice of the peace for the want of a sufficient and proper affidavit.

It appears to be conceded that the appeal was demanded and bond given within the time prescribed by section 1332 of the revised code of 1871, but the affidavit filed states that the appeal is not made to vex, harass or oppress the plaintiff, but that justice may be done, omitting the word “ delay.” We think this is a sufficient and substantial compliance with the statute. The statement in the affidavit that the appeal was taken “that justice may be done,” negatives the idea that it was taken for delay, and is equivalent in intendment and effect to saying that the appeal was not made for delay.

The omission of the word “ delay ” ought not to be permitted to defeat the object and purpose of the appeal, which is, in the language of the affidavit, that justice may be done.

But even if the affidavit had not been a substantial compliance with the statute, the court erred in refusing the application to amend it. For, under our statutes, amendments are very liberally allowed, and they cannot be assigned as error, unless manifest injury has been done. But whilst it is the duty of the court to allow amendments on liberal terms, for the purpose of reaching the merits of the controversy, the parties desiring amendments are not to be excused from exercising proper diligence in bringing and preparing their suits for trial. In this case the application to amend was made in time and should have been granted.

For these reasons, the judgment must be reversed and the cause remanded.