Rutherford v. McDonald

Gill, J. Amendment Title of Action. As to the specifications of error, from 2 to 8, inclusive, the court has examined the instructions of the court below, and is of the opinion that they fully cover all the points necessary to be stated in the case, and accurately and comprehensively state the law governing, and that the court below committed no error in giving these instructions, and in refusing to give those asked by appellants. The only question, then, that remains to be examined, is the error complained of in specification No. 1. Did the court below err in substituting an action of ejectment for one begun as an action of forcible entry and detainer? An examination of the pleadings in this case shows that the issues tried in the cause were those of an action in ejectment, instead of those in an action of forcible entry and detainer. The amendment asked for by the plaintiff in the cause below, and allowed by the court, was a change in the name of the action, and not such an amendment as changed the issues to be tried. The answer .of the defendant in the action is just such an answer as he would have had to have filed in the case to have his title and possession of the premises tried in action of ejectment. He was not surprised by the amendment, but in fact had treated the action up to the time that the amendment was asked as though it were an action of ejectment, had produced his witnesses, and was ready to go on ydth the trial and present his side of the issues in the case. The statute (section 5080, Mansf. Dig.; section 3285, Ind. T. Ann. St. 1899) provides that “the court may at any time in furtherance of justice, and on such terms as may be proper, amend [515] any pleadings or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” Under this section the court is given a wide discretion, in the furtherance of justice, to allow any mistake made in a pleading to be corrected, where it does not substantially change the claim or defense. In this case the claim and defense remained exactly as they were before the amendment was made. There was not even necessity for delaying the trial of the action, as both parties were ready to try the action as though it were one in ejectment. Under section 5083, Mansf. Dig. (section 3288, Ind. T. Ann. St. 1899), “the court must, in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected' by reason of such error or defect.” Here the court below saw that the substantial rights of both parties were presented by the pleadings in the action, and that they could proceed to a trial of the action without injury to either; and, in compliance with the directions of the statute, the court could not do otherwise than to proceed to try this action, instead of putting both parties to the expense and delays incident to the filing of a new cause. While in this case it is true that the appellants were necessitated to the giving of a bond to hold possession of the premises, it was at their own option whether they should or should not give the bond. Having given the bond, they retained possession of the premises, and consequently the mere fact that in forcible entry and detainer the plaintiffs could have acquired possession of the premises, and were endeavoring to do so, does not in the least change the power of the court, in the furtherance of justice, to treat this action and the pleadings there [516] in as an action of ejectment, and to try the case as such. Nor does it make any difference that, because the plaintiffs had the right to institute a separate suit in ejectment under the statute, the court could not treat the action before it as one such. We think there is no error in the judgment of the court below, and the same is therefore affirmed. Clayton, C. J., and Thomas and Townsend, JJ., concur.