Alston v. Mechanics' Mutual Insurance

Nelson, Chief Justice. The cases referred to in the plaintiffs’ brief are full, to show that he is entitled to the amendment moved for; and that upon payment of costs of opposing motion only (See the cases there referred to). . The cases in 6 Taunton, 419, 422, are very much in point as to the amendment; also in 1 Bing. N. C., 170. When deciding this case .on the motion to set aside the report, I felt that the objection to the form of action was, under the circumstances, an ungracious one, coming as it did for the first time at that stage of a very prolonged litigation; and am glad to find we have authority for relieving the party from the slip. Indeed I am of opinion that the company are mainly chargeable with the mistake : they put forth the paper as under their seal; and so all parties supposed, till late in the litigation, and acted accordingly. Motion granted on payment of costs of opposing motion. After deciding this case, my attention has been called to the case of Downer vs. Thompson, since published in 6 Hill, 377; as conflicting with the decision in 86 this one, in respect to the terms on which the amendment is allowed. I have submitted the point to my brethren, and we are all of opinion that there is no conflict between the two cases, and that the disposition of this one is right. In Downer vs. Thompson, the objection was taken the first opportunity by the defendant, thereby calling the attention of the plaintiff to it at once; who, notwithstanding, proceeded in the cause. Here, the cause proceeded to trial, brought before this court upon other questions of law raised by the defendants, carried to the Court for the Correction of Errors, the judgment reversed with venire de novo; and then, on the new hearing, the objection started for the first time. An objection strictly technical, going merely to the form of the action : during the whole of this protracted litigation, all parties assumed, and conducted the trial accordingly, that the policy was under the seal of the defendants; and I must say I think the defendants most in fault, having put forth the instrument as under seal in the first instance. Of course, I do not mean to intimate there was any intentional wrong in the case; for I have no such belief; but the course of the proceeding has been such, that I think, upon a fair and proper view of it, the defendants are not entitled to receive the heavy accumulation of costs that have accrued by reason of their own neglect in putting forth the objection. In all these cases of amendments, the terms are discretionary, depending upon the circumstances of each case.