Walling v. Williams

4 Tex. 214

• Court: Texas Supreme Court
• Decided: December 15, 1849
• Status: Published

Opinion

In prfCOMB, J.

The amendment made by the plaintiff was trivial and unimportant. and could not change, or affect the answer tiled by the defendants so long before, and afforded no pretense for opening the pleadings anew. Although the ends of justice allow great latitude to tlie discretion of the District Court in p-rmitting amendments, yet we believe that to allow a new defense, setting up a defense in law, live years after an issue in fact had been formed, would lie too great an irregularity in practice, and would be very often productive of much injustice and hardship, and ought not be permitted 1111 less under very peculiar circumstances. In this case it is very clear that it would, if successful, impose much cost on the plaintiff that would have been avoided had tlie defense in law been first set up by the'defendants. And further, liad the defense in law been set up at first, it is not improbabl- that tlie plaintiff could have amended liis petition and averred and proved facts that would have excused him from the consequences of not having'Sooner sued tlie maker of tlie note. This is rendered more probable from tlie circumstances that the maker avoided the note, when sued on, by the plea of non est factum.

There is another irregularity presented in tlié record in this case that it is not improper to not iee. Tlie defendants, live years after forming an issue of fact, ’amend by presenting one, of law. Now it is difficult, to perceive in what way an issue of fact is amendable by an issue, of law. They are distinct in their character, and tlie last, by our practice and that of all other courts, should be offered first in order of time. If the counsel should discover, after forming an issue of fact, that there was a legal defense that should have been interposed by making a timely application to the court for leave to withdraw the defense first made and to interpose the defense at law, the court, on sufficient reason being shown, could grant leave on such term’s as should be, thought just and proper; but it is never considered a matter of right-. We believe the court erred in not striking out the plea last, offered by the defendants, and for this error the judgment must be reversed and tlie cause remanded.

Judgment reversed.