McMullen v. Jewell

The judgment of the court was pronounced by Rost, J. This suit was brought on an open account in the name -of John T. McMullen. The account annexed to the petition is in the name of Joseph T. McMullen. An exception taken by the defendant to tlie 'first service of proces made upon him, was sustained by the court, and a new service ordered and made. On the trial of the suit the plaintiff-obtained leave to file an amended petition by which the name of Joseph T. McMullen was substituted to that of John T. McMullen. To this a bill of exceptions was taken by the defendant, who now appeals from the judgment rendered against him in favor of Joseph T. McMullen. His counsel alleges that the judge erred '..first, in alallowingthe amended petition to be filed, after the trial had commenced ; secondly, in condemning the defendant to pay all the costs, whereas the plaintiff should have been adjudged to pay those made in the service of the .first citation, which was decreed te be illegal. Amendments are reduceable to no certain rule. Each particular case must be left to the sound discretion of the court; and the best principle is that, an amendment should or should not be permitted to be -made as it would best tend to the furtherance of justice; provided that the amendments made to the petition do not alter the substance of the demand, and that those made to the answer be not of the dilatory kind. Code of Practice, arts. 419, 420. This principle was recognized by the late Supreme Court in the case of Debuys v. Mollere, 2 Mart. N. S. 625. It has been invariably acted upon ever since; and the application it received in Lalande v. Terrel, 12 La. 8, is decisive against the appellant. [140] It may be that there was error’ in condemning the defendant to pay the costs of an illegal citation. But it is an error which he should have asked the inferior court to correct. We have frequently held, that we would not reverse judgments .on account of trifling errors, unless it was shown by the record that those errors had been brought to the nplipe of the judge, and that he had refused to correct them. We deem these proper cases for the application of the legal maxim, De minimis non curat lex. Hown v. Grailhe, 1 Ann. Rep. 140. [See also Medley v. Voris, 2 Ann. Rep. 140. Amis v. Merchants Ins. Co. Ib. 594. Angelloz v. Risollet, Ib. 651. R.] Had this last rule of practice been settled for ns long a period as that concerning amendments in pleadings, we would have allowed the appellee the damages he claims. But as the appellant may n.pt have been aware of its existence, we will simply affirm the judgment. Judgment .affirmed.