Rio v. Gordon

Morphy, J., delivered the opinion of the court. The defendants are sued on two promissory notes, drawn by one of them to the order of, and endorsed by the other419 They denied having signed notes such as those set forth in the petition. When the trial came on, the *plain tiff’s counsel moved the court for leave to correct an error in his petition, which described the notes as executed in 1837 instead of 1838. This was permitted by the court on the ground that the amendment was immaterial, the notes and protests having been annexed to the petition for reference. To this opinion the defendants excepted. We think that this decision, even if erroneous, caused no prejudice to defendants, for we are satisfied that had the amendment not' been allowed, the defendants could not have resisted the introduction of the notes in evidence. It is shown that they had full notice that they were to be sued on those very notes; and that, therefore, they would be introduced and relied on. The defendants next complain that an amended answer filed by them was improperly stricken out. It appears, that owing to the rapidity with which business proceeds in the court below, the amended answer although filed on the very next day after the original one, came in after the cause was set for trial. Under other circumstances the defendants might per-hapsj have been relieved, but here we think the judge was correct, because this amended answer was not only untimely, but alleged no new fact, created no new issue, and was intended only to repair the omission of an affidavit in the original answer, with a view to obtain a trial by jury. The merits of the defence, set up in the first answer, have already been considered and found to contain'nothing. Damages are prayed for by appellee, but we do not think this a proper case to allow any, because the defendants may have had , , , . . ... . . , . , , some doubts on the correctness of the opinions to which they excepted ; and besides they are already bound to pay eight per cent, per annum. " 1 1 Where the reasonably have hatl doubts of the correctness of the judgment notbecondemn-ed t0 Par damages as tor a frivolous appeal. It is, therefore, ordered, adjudged and decreed, that the judgment below be affirmed, with costs.