Fogarty v. Horrigan

28 Wis. 142

• Court: Wisconsin Supreme Court
• Decided: June 15, 1871
• Status: Published

Opinion

Cole, J.

We fully agree witb tbe circuit judge in tbe opinion tbat there was no abuse of discretion on tbe part of tbe justice in refusing to allow tbe defendant further to amend bis answer by pleading tbe statute of limitations. Tbe defendant was permitted to amend bis answer on tbe adjourned day. On tbe second adjourned day, when tbe parties were about to proceed to trial, tbe defendant again asked to amend so as to set up tbat defense. After tbe issues bad thus been made up, it certainly was no abuse of discretion to refuse to let tbe defendant further amend bis answer to enable him to set up what is sometimes denominated a bard and unconscionable defense. It is claimed tbat all defenses stand upon tbe same ground, and tbat no distinction should be made between tbe statute of limitations, usury, and other defenses. But there obviously must be some limit to tbe power of amendment; and where tbe application was addressed, as in this case, to tbe discretion of tbe justice, if tbat discretion has not been improperly exercised, tbe decision should not be disturbed. Besides, this court has been disposed to uphold a distinction between such defenses as usury and tbe statute of limitations and other defenses, and has said tbat where a party asks an indulgence of tbe court, and there is no statute controlling its action, it might make discrim-inations dependent on the nature of tbe defense. Jones v. Walker, 22 Wis., 220; Dole v. Northrop, 19 id., 249; and Weber v. Zeimet, 27 id., 685.

Here tbe defendant bad ample opportunity for setting up bis defense, and was even permitted to amend bis answer on tbe adjourned day. And we think, under tbe circumstances, tbe justice very properly denied btm leave to further amend on tbe second adjourned day, to set up tbe proposed defense.

By the Court.— Tbe judgment of the circuit court is affirmed.