Rogers v. Wright

21 Wis. 681

• Court: Wisconsin Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Cole, J.

We do not think there was any abuse of discretion in permitting the defendant to file and serve the amended answer. It is impossible to say that the defendant was guilty of any delay in making his application, since it was made at the next term of court, and the attorneys of the plaintiff had reasonable notice of the intention to make it. It was not like the cases of Dale v. Northrop and Sweet v. Mitchell, referred to by the counsel for the appellant, where the applications to file amendments to the pleadings were made a long time after the suits were commenced, and after trials had been had.

But it is insisted that the court was guilty of an abuse of discretion in granting leave to file the amended answer, because it was not in furtherance of justice. It is not claimed, however, that the amended answer does not contain defenses to the action, if the matters therein set forth are established on the trial. But it is said these defenses' should not be regarded with favor, because tbe first, second and fourth were available under the original general denial, while the third (infancy when the note and mortgage were executed) should only be allowed upon very clear evidence that it can be maintained on the trial. We hardly think such a strict rule would be in accordance with the spirit and letter of our statute upon the subject of amendments. It is true, the amended answer was not sworn to ; neither was the complaint.

By the Court. — The order of the circuit court is affirmed.