Leitz v. J. E. Rayner & Co.

Opinion by Glogston, C.: In the course of the three trials of this case many rulings were made by the court, which are now urged as errors, but we shall pass them by, except the ruling of the court after the last trial by the jury. After the court sustained the demurrer to the defendant’s answer, leave was asked to amend the same, and this leave was refused by the court. We think this was error. This answer had been twice attacked by the plaintiffs before the last trial': first, by demurrer; and second, by objection to the introduction of evidence théreunder. These objections were by the court overruled, and by these rulings the defendant was assured that his answer contained a defense to the plaintiffs’ action, if the facts alleged in said answer were true; and at the trial these facts were so far established that under the instructions of the court a jury returned a verdict for the defendant. Now while it was discretionary with the court to permit the plaintiffs to withdraw their reply and refile a demurrer, and discretionary to permit the defendant again to amend his answer, yet under the facts of this case we think it was an abuse of discretion to refuse to permit the amendment asked for by the defendant. The court, as well as the defendant, had been misled up to this time as to the allegations in this answer. The answer had been treated by the court as sufficient to raise an issue of fact. Then if the defendant could amend his answer by alleging facts that would' raise such an issue, he ought not to be deprived of that right simply because he, as' well as the court, had been misled as to the allegations in the former answer. [472] The court iu justice to the parties might have permitted the amendment, upon such terms as it thought just; but to refuse after large costs had been made in former trials was unjust to the defendant. As this case must be reversed, we express no opinion upon the amended answer. It is recommended that the judgment of the court below be reversed. By the Court: It is so ordered. All the Justices concurring.