Plumb v. Whipples & Gates

Harris, Justice. By the defendants’ answer, controverting the material allegations in the complaint, an issue of fact was made, which might be noticed for trial (Code of 1849, § 250, 256). The plaintiff’s attorney was therefore regular, in serving notice of trial on the first of April. The defendant insists that, by the 172d section of the Code, he was entitled to amend his answer; and that having served his original answer by mail, the time to amend was extended to forty days. But I think he is mistaken in his main position. The section referred to, provides that a pleading may be amended “ at any time before the period for answering it shall expire, or within twenty days after the answer to such pleading shall be served.” In this case, the defendant’s pleading did not admit of an answer. The plaintiff can only reply or demur to an answer when it contains new matter (Code of 1849, § 153). The provisions of the 172d section, 413 therefore, can not be made applicable to such a case. The defendant, in fact, had no right to amend his answer, after it had been served. But if he had such right, if the answer had contained new matter to which the plaintiff had replied at the same time he noticed the cause for trial, still I think there would have been a conclusive answer to this motion. Then, the defendant would, indeed, have had the right to amend, and that right would have extended twenty or forty days from the time of serving the reply, according to the manner of service. But the right so to amend is not to “ prejudice the proceedings already had.” Effect is to be given to this provision, and I understand it to have been intended for a case like that under consideration. The plaintiff had a right, when the cause was at issue, to notice it for trial. If the issue noticed for trial still remained, when the time for trial arrived, then he might try the cause, and, if successful, perfect judgment. None of these proceedings are to be prejudiced by a subsequent amendment, even although it should be made within the time prescribed by the statute. The plaintiff may notice his cause for trial before the time for amending the answer expires. He does so at his peril. That peril is, the contingency that before he can bring it to trial, the defendant may amend, and thus destroy the issue he had intended to try. On the other hand, the defendant takes the time allowed him to amend, at the peril of all regular proceedings which may be taken against him before he amends. Such proceedings, whatever they may be, are not to be prejudiced by the amendment. The case of Morgan vs. Leland (1 Code R. 123), arose under a section of the Code of 1848, which was omitted in the revision of 1849, and which gave to the plaintiff the absolute right to amend his complaint within twenty days after demurrer (Code of 1848, § 124. Indeed, this case was not relied upon by the defendant’s counsel upon the argument of the motion. Without reference, therefore, to the character of the defendant’s amended answer, and conceding that the amendment was made in good faith, the plaintiff’s judgment is regular and must stand. The defendant has misapprehended the effect of the section under which he claims the right to amend. He had not the- right to 414 amend at all; but if he had, to have thrown the cause over the circuit, which was probably the end he had in view, he should have served his amended answer before the trial. The motion must be denied with costs.