Harvey v. Ferguson

Perkins, J. Suit upon a promissory note, and for work and labor, goods sold, &c. The defendant answered., denying that he was indebted to the plaintiff, alleging that plaintiff and defendant had been partners, and that the note was given for an interest in the partnership, but that, by a subsequent agreement, it was to be given up and canceled; and in another paragraph, he set up and claimed a set-off. Issues by replies. Trial by jury; finding and judgment for the plaintiff. By a bill of exceptions it appears that the plaintiff had laid the damages in the conclusion of his declaration at 1,000 dollars, and that the Court permitted him to amend by reducing the amount to 999 dollars. This Court, in Epperly v. Little, 6 Ind. R. 344, held such an amendment proper. Should the Court dismiss, in such a case, for want of jurisdiction, the plaintiff could immediately reduce his claim to damages, refile his declaration, and thus institute his suit anew. It comes nearly to the same thing, except as to time, as permitting him to amend on payment of all [394] costs to the time of amendment. This he would be re-to do, if the defendant insisted upon it. Under our very liberal statutes as to amendments, the Court has sustained this course of practice, as tending to promote the ends of justice without materially infringing any legal principle. D. C. Chipman, J. W. Evans, W. Garver and M. B. Hopkins, for the appellant. G. H Voss, for the appellee. By another bill of exceptions it appears that a motion was made for a new trial and overruled. The bill does not purport to set out all the evidence, nor does any other part of the record. The merits of the case upon the evidence, are not, therefore, before us. We cannot judge of the correctness of the ruling in the denial of a new trial. A third bill of exceptions shoVs that the defendant asked leave to amend his plea of set-off that it might meet a state of facts which he assumed was presented by the evidence. The Court refused to grant the leave on the ground that the evidence did not present the state of facts assumed by the defendant. As the record does not purport to contain all the evidence, we cannot say that the Court erred in its view of what it established. Per Curiam.- The judgment is affirmed, with 1 per cent, damages and costs.