Kizer v. Wilkes

5 Mo. 519

• Court: Supreme Court of Missouri
• Decided: April 15, 1839
• Status: Published

Opinion

Napton, Judge,

delivered the opinion of the court.

Wilkes instituted a suit against the plaintiffs in error, by petition ip debt, in the Morgan circuit court. At the return term, defendants pleaded nil debit, and a special ple.a of fraud, coven, &c. At the same term, a paper purporting to be replications, was placed among the papers of the cause, but not signed by the plaintiff or his attorney, nor endorsed by the clerk; nor was any leave given for permission to file replications in vacation. At the next term, the plaintiffs moved for leave to sign said replications, and file them nunc pro tunc, which was granted — issue taken, and the case submitted to the court. Exceptions were taken to the filing of the replications, and this is the only question now before the court.

By the provisions of one statute, in relation to pleading, the court has the power, “ upon good cause shown, and for the furtherance of justice,” to extend the time for filing any plea; and by the 1st section of the 6th ar-die same act, the court is invested with power “ to amend any process, pleading or proceeding, in any action, either in form or substance, for the furtherance of justice, and on such terms as shall be just, at any time before final judgment rendered therein.”

No application for a continuance in this case was made, no mot*on for a new trial. It is, therefore, obvious that the defendants below sustained no injury by the ex-’ ercise of the power vested by the statute in the circuit court. The judgment of the court below is affirmed, Judge iompkms concurring m this opinion.