Burrow v. Berry

SOMERVILEE, J. In Ex parte Ashurst, 100 Ala. 573, 13 South. 542, wherein the right of a respondent to amend his answer to a bill in equity after submission of the cause was involved, the decision of this court is thus correctly stated in the fourth headnote: “The right to set up any matter of defense includes the privilege to meet any state of the evidence authorizing relief, and averments of an unsworn answer cannot, even after publication of the evidence and the submission on agreement as to certain facts, be retained against respondent’s motion to strike them out, on the ground that complainant will so be deprived of their admissions, since he may try or continue the case and take additional testimony.” In the opinion it was said: “If he [the respondent] has by mistake, inadvertence or otherwise, made averments in his answer which he is advised it were better not to have been made, and he would change his ground, by striking out and inserting or by striking out and not inserting, or by inserting merely, he may do so; and if he strikes out, and inserts matter which is inconsistent with, or even contradictory of what was stricken out, it furnishes no ground for objection by complainant.” In that case the court was proceeding under section 3449, Code 1886, which was preserved, without change, as section 3126, Code 1907. This subject of amendment's in equity was recodified and fully covered by the act of September 22, 1915 (Gen. Sess. Acts 1915, p. 705), but no change was wrought in the former statute with respect to the character of the amendments permitted, or the time within which they may be filed. Hence the case of Ex parte Ashurst, supra, must stand as the settled construction of the statute as now in force, and must govern us here. It was not necessary for respondent to have the submission set aside before filing his amended answer; and, the effect of the amendment being to withdraw all admissions *80 made in tile original answer, and thereby to cast upon complainant tbe burden of proving tbe existence of tbe debt, and the subsequent conveyance by respondent of bis property, in order to show a prima facie case for relief (London v. Anderson Brass Works, 197 Ala. 16, 72 South. 359), its disallowance must be held as prejudicial error, working a reversal of tbe final decree. Upon, tbe filing of the amended answer, complainant will be entitled to a continuance and tbe opportunity to take sucb testimony, and present such record evidence, as tbe issues may require; and respondent will also be allowed to take testimony and offer evidence in rebuttal. Tbe trial court will make sucb orders as are appropriate to that end, imposing terms upon respondent in its discretion, as authorized by tbe statute. Gen. Sess. Acts 1915, p. 705. Reversed and remanded. ANDERSON, O. X, and THOMAS and BOULDIN, JJ., concur.