Crerar v. Milwaukee & St. Paul Railway Co.

Dixon, C. J. The power of amendment is very broad, the statute declaring that “ the court may, before or after judgment, in furtherance of justice, and upon such terms as may be proper, amend any pleading or proceedings * * * by inserting other allegations material to the case,” etc. R. S., ch. 125, sec. 37; 2 Tay. Stats., 1446, § 41. It was held in Malley v. Altman, 14 Wis., 22, that a proceeding against a garnishee is to all intents an action. If the means provided by law, and the steps to be taken to obtain judgment against a garnishee, be not an action, then they must at all events be proceedings in a court of justice for that purpose ; and when the statute says that any proceedings may be amended in the manner prescribed, it must be held to include the proceedings against a garnishee, unless there be something in the same or some other statute in pari materia, by which the words are restrained. Harrington v. Smith, 28 Wis., 43; Encking v. Simmons, id., 272. [73] It is claimed that such restriction is found in sec. 49, ch. 130, R. S. (2 Tay. Stats., 1480, § 52), which declares that the affidavit for the process “ shall be deemed the complaint in the action against the garnishee, and his answer taken on his examination shall be his answer in such actionand the case of Platt v. The Sauk County Bank, 17 Wis., 222, is cited. This, it is said, makes the papers so named the only pleadings which can be had, and excludes the power of amendment. The rule that where a statute gives a new remedy and designates the manner of pursuing it, all other remedies are excluded, is invoked. It would be an extreme, and, we think, unwarranted application of the rule to hold it in such a case. The statute just quoted is undoubtedly directory, intended to furnish a general rule for the conduct of such proceedings, but not to lay down a peculiar or exclusive one which must in all cases be followed. It was designed to supply a general rule for the government of all ordinary cases, and which in such cases might stand and be sufficient, but not to bind the court by set forms and modes of action in extraordinary ones, where the ends of justice demand that some different course should be pursued. It was not designed to exclude the amending hand of the court to relieve from mistakes and omissions, where, without amendment, injustice and wrong are sure to follow. The power of amendment, in furtherance of justice, is general, granted in general words which must receive a general construction, so as to prevent wrong and injustice, wherever the party applying has not debarred himself by his own gross fault or misconduct. Under this power it was undoubtedly competent for the circuit court to receive the amended answer of the garnishee defendant. It would be competent for the court in any similar case, or under any circumstances where justice to the garnishee or to the plaintiff in the proceeding demanded it, to direct an issue to be made up in the usual form of complaint and answer, as is done on appeals from the decisions of the county boards of supervisors, and on numerous other ap [74] peals provided for by statute and where no statutory authority is given or provision made for the forming of such issues. It is one of the inherent powers of the court to so mould and direct the proceedings after the cause has come into it, as best to promote and secure the objects of right and justice between the parties. Such, under the statute of amendments, was the authority of the circuit court in this case. It is not claimed that the facts set up in the amended answer do not make a case for amendment in furtherance of justice. It is very clear that they do. The objection to the amendment as such, or as one which the court had the power to allow, is that the defendant had deprived itself of the privilege by its omission to answer the facts in the first instance, or when the examinations took place before the commissioner. It appears that all the facts were not then known to the agents and officers of the company, and could not readily be ascertained, and that some most important ones have since come to pass. But aside from this, we think the case discloses no such laches on the part of the company as ought to defeat the ap-. plication, or as renders the granting of it an abuse of the discretionary powers vested in the circuit court. It seems to us that the order ought to have been made, and that the refusal to make it would have been erroneous and wrong. Counsel say that the company could not make itself arbiter of the law and the facts, and deliver over the cars to the receiver after the service of the process of garnishment. It may be true that the company was not such arbiter, but it could deliver over the cars at its peril, or subject to being compelled to account to the plaintiffs for their value in case such delivery should be afterwards found to have been wrongful. The delivery would not prevent the company from showing that the cars belonged to the receiver, and that he was rightfully entitled to the possession of them as against the plaintiffs. It would not prevent the company from showing that it was lawfully made, and therefore not wrongful. We see nothing in [75] this fact which should have led to a denial of the application. Counsel for the plaintiffs, who appeal, treat this as an appeal from tbe order allowing the amendment. Looking upon it in that light, the appeal should be dismissed, since there was no abuse of discretion in granting the order. In such case ap-pealability depends on the abuse of discretion. If there be such abuse the order is appealable; but if there be no abuse, then it is not. See note to Cottrell v. Giltner, 5 Wis. (new edition), 275. By the Court. — Appeal dismissed with costs.