Macauley v. Ryan

Gileillan, C. J. This case was tried by the court, without a jury. ■On the trial, after the parties had submitted their evidence and summed up the case, the court intimated how it would decide it, whereupon the plaintiff asked leave to amend her complaint so, .as defendant contends, as to allow the setting up of an entirely dif [509] ferent cause of action from that in the original complaint. The court announced that it granted the motion on certain conditions,, among them that plaintff should be allowed thirty days within which to amend the complaint, and the defendant was allowed three' months within which to answer. That seems to have been regarded by all — the court and the parties — as the end of the trial proceedings, and it seems to have been considered that all that had been done in the trial went for naught. No order allowing the amendment was entered in the minutes, or signed and filed. (Opinion published 57 N. W. Rep. 151.) The defendant assumes to appeal from what he calls the “order allowing the amendment.” When an amendment is allowed and made in the trial, the allowance and amendment are a part of the trial, and, being made to-appear by a settled case or bill of exceptions, may be reviewed on an appeal from the judgment or from an order refusing or granting a new trial, and they can be reviewed, in no other way, any more than can any other ruling or decision made in the course of the-trial. In no other case can we review a ruling or decision of a court not entered in an order. There can be no appeal until then. Indeed, in this case, without such order, the plaintiff has no leave te amend. Until it is made, there is no legal reason why the court should not go on and decide the case according to the evidence submitted. As there was nothing to appeal from, the appeal is dismissed.