Warne v. Anderson

Opinion of the Court by Napton, Judge.

The appellees sued the appellant in assumpsit on a bill of exchange. Plea non-assumpsit, and verdict and judgment for plaintiffs below. The appellant moved for a new trial, because the verdict was against law and evidence, and because the court erred in suffering the plaintiffs below to amend their declaration, and overruled the defendant’s motion for a continuance, by virtue of said amendment. It was also alleged as a reason for a new trial, that the court suffered improper evidence to be given on the trial. The motion for a new trial was overruled.

It appears from the bill of exceptions, that upon the trial, the plaintiffs, below, offered in evidence a bill of exchange, which is set forth,in the record, and upon the back of which is indorsed the words, “accepted, St. Louis, June 22,1840. Thomas S. Warne.” The plaintiffs proved the hand-writing of the payees, and who composed the firm of Anderson and Thompson. And this was all the testimony. The defendant, below, then moved the court for a non-suit, upon the ground that the proof did not sustain the plaintiff’s declaration, in this; the declaration read, “ George C. Anderson & John S. Thompson plaintiffs, co-partners in trade, under the name, firm and style of Anderson & Thomas.” This was the only variance alleged on the trial, and the court overruled the motion, and allowed the counsel of appellees to amend the declaration by striking out the word “Thomas,” and inserting “Thompson,” and without granting any continuance by reason of said amendment, the court proceeded to give judgment. The appellant then moved for a new trial, as before stated.

Upon this motion for a new trial, it seems from the bill of exceptions, that a variance between the declaration and the *49 bill of exchange offered in evidence, was brought to the notice of the court, as one ground for granting a new The court overruled the motion, and suffered the declaration to be amended nunc pro tunc, by inserting 22d June instead of 2d June, as it was in the original declaration. To all of which the appellant excepted.

The errors assigned are,

First, That the court improperly allowed the declaration to be amended, and if properly allowed, the defendant was entitled to his continuance.

Second, The court erred in allowing the declaration to be amended after judgment.

Third, The verdict was unsupported by the testimony.

Our statute regulating practice at law, provides, (Rev. Co. of ’35, p. 467,) that the court in which any action shall be pending, shall have power to amend any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before final judgment rendered therein. If such amendment be made in matter of substance, the adverse party shall be allowed an opportunity, according to the course and practice of the court, to answer the pleading so amended.

There is no doubt that the court under this section had the power to allow the amendment; and the only question is, whether the defendant had a right to a continuance because of such amendment. Was the amendment formal or substantial 1 If the allegation, that the plaintiffs were co-partners under the name and style of Anderson & Thompson, be a material allegation, the amendment must be one of substance. I am of opinion, that this allegation was material, and the plaintiffs so consider it by introducing proof of the partnership. If the partnership proved was essentially different from the one set out in the declaration, the plaintiffs must of course have been non-suited, and to avoid this they were suffered to make the amendment. It has been often decided by the court, that such amendments entitle the other party to a continuance. It may be a mere clerical error, made by counsel; but whether so or not, if it *50 require amendment, and the amendment is of a material allegation, and one which must be proved as averred, the statute is imperative in giving a continuance.

A variance between the declaration # mentsued "on in the date of cured^ver-diet. After verdict the presumption ponded with the 3(]eclar’n! inan action aecéptorof bill of ex-not necessary to prove his hand-writing, unless it is denied by plea verified by affidavit.

The amendment made by the court after judgment, was in my opinion, entirely unncessary. The verdict cured the declaration, if it was deficient in the particular suggested; ’ , . , , and after judgment, the presumption was, that the proof corresponded with the averments. There was no error on this point.

The last objection taken, that the verdict was unsupported w testimony, appears to be without foundation. Proof J f , , , , , . of the signature of the endorsers, and the partnership of was made, and the only objection taken is the failure to prove the proper hand-writing of the acceptor, who was the defendant. Our statute provides, that before-any proof is requisite to establish the hand-writing of the charged, he must deny the instrument to be his. No such denial was in this case made.

My opinion is, that this judgment should be reversed, because the court refused to grant a continuance, Tompkins, Judge.