Kunze v. Solomon

Grant, J. (after stating the facts). 1. It is urged that the amendment introduced a new cause of action, and was not permissible under tbe rules of pleading. We think otherwise. The amendment permitted the statement of an additional reason against the validity of defendant’s deed, and for its annulment as a cloud upon complainant’s title. It introduced no new cause of action. 1 Enc. Pl. & Prac. 468, 485; Church v. Holcomb, 45 Mich. 29 (7 N. W. 167); Smith v. Sherman, 52 Mich. 637 (18 N. W. 394); Dodson v. McKelvey, 93 Mich. 263 (53 N. W. 517). 2. The failure to proceed under section 9167 would be-fatal to the defendant’s case. Edsell v. Nevins, 80 Mich. 146 (44 N. W. 1115), and authorities there cited. See, also, Jenison v. Rankin, 57 Mich. 49 (23 N. W. 482). 3. Upon overruling defendant’s objection to the amendment, her counsel asked leave to file an amended answer, and for permission to take further proofs in respect to the new matter brought into the case by the amendment. This was denied. Neither during the progress of the-hearing nor at the time the amendment was allowed did counsel for the defendant claim that she had taken proceedings under the statute. If they, had done so, the-court would, as a matter of course, have allowed an amended answer, or would have permitted the evidence without an answer. Such proceedings, if taken, were a matter of record in the same court in which the case was being heard. We may justly infer that no such proceedings were had. Possibly, however, counsel may have rested upon the belief that the burden of proof was upon the complainant. It would certainly have been wise for293 complainant to assume it. Counsel for either side might have avoided this question by introducing the proof, which was easily within the reach of either. In order, however, that no wrong may be done, the defendant will be allowed 20 days from the service upon her counsel of a ■copy of this opinion within which to file in this court a certified copy of such proceedings, if taken, in default of which the decree will be affirmed,- with costs. If filed within that time, the decree will be reversed, with costs. The other Justices concurred.