Ex parte Ashurst

HARALSON, J. Formerly the right to amend a bill or answer, whether verified or not, rested within the discretion of the court. As to verified pleadings, there was much indisposition to allow amendments so as to vary facts already stated, or to let in new facts. “And it was but seldom, that an amendment was allowed after the taking of evidence, introducing facts known to the party, or which, with reasonable diligence, he could have discovered at the time of filing the original pleading.”—Rapier v. Gulf City Paper Co., 69 Ala. 481; 1 Han. Ch. Pr. §§ 778, 779. It is not to be wondered that a power so unlimited, by the improper exercise of which the rights of litigants might be unjustly denied or destroyed, should not be allowed to continue. It is right to get as far away from the discretion of judges as is practicable, and consistent with the due administration of rights, in courts of justice. In obedience to this salutary principle, and, no doubt, influenced thereto by the improper, if’ conscientious exercise of judicial discretion in allowing amendments to chancery pleadings by chancellors, we find the legislature taking a long delayed and short step from the unlimited power with which tliese officers were theretofore clothed in reference to such matters. At the session of 1858-9, they passed a statute, the 3d section of which provides, “That amendments to bills and answers shall be allowed at any time before final decree, to meet the.justice of the case-, and amendments to bills shall be allowed by adding or striking out new parties complainant or defendant, and to meet any state of proof that shall authorize relief; and all amendments shall be allowed, upon such terms as the chancellor shall de«m just and equitable,” &o. Acts 1858-9, p. 130. By this statute it will be observed, (1) that bilk and an [577] sioers were to be amended at any time before final decree, to meet the justice of the case ; (2) that bills, in addition, were to be amended as to parties, and to meet any state of proof that would authorize relief—a privilege not bestowed on answers ; and (3) all amendments, whether of bills or answers, were to be allowed, upon such terms as the chancellor should deem just and equitable. The right to amend was absolute, but the power of the chancellor remained almost, if not as unlimited as before, if he should choose arbitrarily to exercise it. The legislature did not long halt here, and moving still further away from such judicial discretion, in 1860, they amended the forgoing statute, and put it into the form in which it has appeared in the subsequent Codes of this State,—in that of 1886, as § 3449. By this amended statute, amendments are to be allowed, as before, as a matter of absolute right, not upon such terms as the chancellor may deem just and equitable, but upon terms not extending beyond the payment of all the costs. And it is further provided by this last statute, not that bills and answers shall be allowed to be amended “to meet the justice of the case,” as was the provision in the said original statute, but answers are to be allowed to be amended, “so as to set up any matter of defense,” and bills, “by striking out or adding new parties, or to meet any state of evidence which will authorize relief.” Bills and answers were thus dissociated in the statutory scheme for amendments to each. The privilege given to bills by the first of said statutes, as contained in the words, “to meet the justice of the case,” was taken away by the last, and confined to making parties, and to meet any state of proof that should authorize relief. In other words, there is a clear and distinct right of amendment given to bills and answers ; and the amendments which may be made of the one are not the same, in all respects, as those that may be made of the other. The history of this legislation, and the literal interpretation of the present statute, therefore, authorize us to conclude, that in case of amendments to answers, they are to be allowed as a matter of absolute right, “so as to set up any matter of defense,” and they are not necessarily confined in their scope “to meet any state of evidence (already taken) which will authorize relief.” The chancellor is without power, any longer, to deny an amendment of an answer, which is proposed at any time before final decree, the purpose and effect of which is “to set up any matter of defense,” except to impose all the costs^as a condition to [578] its allowance. This right of amendment, surely, includes the privilege of amending “to meet any state of evidence [already taken] which authorizes relief,” as in the case of bills, for that would be matter of defense; but it goes far beyond that, and includes any other matter of defense, not already set up to the case as made by the bill, or to change the grounds of defense, if deemed advantageous to do so. The purpose of the legislation is, to furnish a rule by which justice may be the more surely done, and not defeated, between the parties.—Rapier v. Gulf City Paper Co., supra; Pitts v. Powledge, 56 Ala. 147. There are obvious reasons for this difference in the right to amend bills and answers. The complainant inaugurates the litigation upon his own chosen grounds; he may require the answer to be made under oath, so as to make it evidence for him against the defendant, or waive the oath, if it best'suits his purposes; he may take and introduce his proof from whatever quarter gathered, and afterwards, before final decree, amend his bill by adding or striking out averments, so as to make the allegations and proof correspond! From this absolute right to amend, and the favor with which the right is treated, we see in practice, that the amendments to bills are vastly more numerous than those to answers. It would seem, therefore, to be equitable in the scheme for the promotion of what is right and just between the parties, to allow the defendant to meet these attacks upon him from every point, by interposing by amendment, when necessary, any matter of real defense which he may be able to set up. If he 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.—Seales v. Pheifer, 81 Ala. 520. And he may also amend, as the complainant may do, to make his proofs and averments correspond. The contention that the averments of an unsworn answer may not be stricken out by amendments, because complainant would thereby be deprived of them as admissions in his favor, demands of defendant a concession of his right of defense which is not sanctioned by any of the rules of practice of courts of equity which are known to us. Such averments or admissions are mere pleadings of counsel, and may [579] be varied at any time, at tlie will of the pleader.—Zelnicker v. Brigham, 74 Ala. 602; Watts v. Eufaula Nat. Bank, 76 Ala. 474. It has been urged that the allowance of the amendment, before final decree and after publication, was a matter of detriment to the complainant; but it may be properly replied that the statute has compensated as far as may be, for any such injury, in allowing complainant, as a matter of right, an option to try or to continue the cause, with the privilege of taking additional testimony. No amendment could be allowed which deprived complainant of that right, and if not debarred that privilege, he was in no worse condition than he would have been in the beginning, if defendant had made no such averments in his answer, as those he struck out by amendment. The practice of setting aside a submission on pleadings and proofs, when the cause has been held up for decree in vacation, is one of common indulgence by chancery courts.—Magruder v. Campbell, 40 Ala. 64. We fail to see again wherein the court or the defendant, in the amendment which was allowed, violated the agreement of counsel, entered into to facilitate the trial and save expense, by agreeing that certain facts should be admitted as if proved on the trial. Those agreements may be used on the final submission and trial of the cause, with all they contain, as though the amendment had never been made. It would be extending their terms to what they do not contain, to hold that the defendant company precluded itself thereafter, from all right to amend its answer, or make any other proper or legal motion in the cause. From what has been said, it will appear that the amendment of the answer was properly allowed, and petitioner on that account is not entitled to maintain this writ. But the order of the court allowing the amendment, if erroneous, was subject to correction on appeal, after final judgment. It is everywhere conceded, that the writ of mandamus never lies to prevent a failure of justice, except in cases where there is no other specific, adequate remedy, to enforce a clear legal right. And so in a case similar to this, where an amendment had been allowed to a complaint at law, it was held by this court, that the allowance of the amendment being revisable on error or appeal, it was not a good ground for mandamus. After reviewing the authorities on the question, Somerville,'J. speaking for the court, very properly said: “It is proper to add, that our past decisions have carried the principle of interfer [580] ence by mandamus with the interlocutory orders and motions of inferior courts, quite as far as we are willing to extend it. Our inclination is rather to restrain. than enlarge such jurisdiction, as being more in harmony with the weight of authority and sound reasoning.”—Ex parte S. & N. A. R. R. Co. 65 Ala. 599; Ex parte Garland 42 Ala. 559; High Extra. Leg. Rem., § 186. If the allowance or refusal of amendments to pleadings in equity may at any time be controlled by mandamus as to which we do not decide, the cause here presented is not one of them. The mandamus is refused, and the application dismissed at the cost of the petitioner.