Smith v. Dragert

Cassoday, J. The allowance or disallowance of an amendment to a pleading setting up a statute of limitation or a plea of usury, rests in the sound discretion of the trial court, under all the circumstances of the case. In accordance with that principle this court has frequently sustained orders of the trial court refusing to grant such amendment. Fogarty v. Harrigan, 28 Wis. 142; Eldred v. Oconto Co. 30 Wis. 206; Meade v. Lawe, 32 Wis. 261; Dehnel v. Komrow, 37 Wis. 336; Plumer v. Clarke, 59 Wis. 646. It has also sanctioned the right of the trial court, in the exercise of such discretion, to grant such amendment. Newman v. Kershaw, 10 Wis. 340; Jones v. Walker, 22 Wis. 220; Orton v. Noonan, 25 Wis. 676; Baker v. Supervisors, 39 Wis. 444; Wis. Cent. P. R. Co. v. Lincoln Co. 57 Wis. 137. Where such discretionary power has in fact been exercised by the trial court in a given case, this court, in the review of such exercise, only determines whether there has been an abuse of such discretion. Dehnel v. Komrow, supra; Capron v. Supervisors, 43 Wis. 617; Plumer v. Clarke, supra; Phoenix Mut. L. Ins. Co. v. Walrath, 53 Wis. 669; Wallis v. White, 58 Wis. 28; Jones v. Evans, 28 Wis. 168. In the case at bar the trial court expressly refused to exercise such discretion on the asserted assumption that it had no such power. This was error. Where a trial court has, in the exercise of a sound discretion in a given case, power to do or not to do a certain act, a refusal to exercise such discretion, upon the expressed assumption that it has no such power, is an error of law which eliminates from the case the question whether there vras any atuse of discretion. Wallis v. White, 58 Wis. 28, 29; Phœnix Mut. L. Ins. Co. v. Walrath, 53 Wis. 676-7; King v. Justices, 14 East, 395; Russell v. Conn, 20 N. Y. 83; Tracy v. Altmyer, 46 N. Y. 598; Tilton v. Beecher, 59 N. Y. 176; Attorney Gen. v. Continental L. Ins. Co. 88 N. Y. 77; Tolman v. S. B. & N. Y. R. R. Co. 92 N. Y. 353. We confine our decision here to [224] the error of law strictly, leaving open to the trial court its rightful exercise of a, sound discretion. By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.