21 Colo. 348 | Colo. | 1895
delivered the opinion of the court.
It is apparent from this record that the omission to prefix the article “ The ” to the name of plaintiff bank, and the mistake in the initial letter of Swatzel’s middle name, were mere clerical errors that could not possibly mislead the appellant as to any defense he may have had to the notes in question; nor could their correction by amendment upon the trial in any way inure to his prejudice. He was informed of the identity of the notes sued on by the face of the complaint itself, and by the copies there set out he was advised that The American Savings Bank was the payee, and was in fact the plaintiff; and also that they were the notes he executed in conjunction with G. H. Swatzel. It is too plain to admit of controversy that the court below, in allowing the amendments complained of, acted clearly within the purview of section 78 of the code of civil procedure, and would have violated both its letter and spirit had it not permitted them to have been made.
The further objection to the testimony of the witness Robinson is equally without merit. It is to be regretted that section 391 of the code, which provides for the assessment of damages upon the dismissal of an appeal for want of prosecution, is not broad enough to cover cases wherein appeals are taken upon trivial grounds, but since it is not, we can do no more than simply affirm the judgment of the court below, which is accordingly done.
Affirmed.
