Noble v. Terrell

ARNOLD, J., delivered the opinion of the court. Under the statute there was no error in permitting the petition to be amended; but if it was not allowable, under the statute, to join with the petition to enforce the lien for a certain sum, a count in assumpsit for a certain other sum for which no lien was claimed, for lumber alleged to have been furnished under the same contract between the parties, the error of doing so is cured by the statute of jeofails, which provides, among other things, that no judgment shall be stayed or reversed, after verdict, for any mis-pleading or insufficient pleading, or for any mistake or misconception as to the form of action. As we construe the record, no objection was made to the form of the petition or complaint before trial, and none can be made on such account after verdict. The statute intends that the pleadings shall be settled by appropriate method before trial, and if it is not done, neither party, after verdict, shall avail of a defect in the pleadings, such as a misjoinder of causes of action, or a mistake in the form of action. On the issues joined, there was no error in giving and refusing instructions, and on the showing made, there was no error in refusing to grant a continuance, or new trial. Affirmed.