Gilpin v. Ebert , 2 Colo. 23 ( 1873 )

Hallett, C. J.

By the summons, appellee, who was plaintiff below, claimed damages amounting to $2,300, and in the delaration he alleged damages to the amount of $5,000. Appellant pleaded the variance in abatement, but the court allowed appellee to amend tlie declaration so as to make it, conform to the writ. Of this action of the court appellant complains, and we think without reason. The variance was indeed well pleaded, but the court was not thereby debarred from allowing appellee to amend his declaration so as to avoid the objection raised by the plea. This is often done in cases of misnomer, and upon the same reason it should be done in other cases, where the amendment cannot prejudice the rights of the defendant. In the cases cited by counsel, it does not appear that there was an application to amend, and the power of the court to allow an amendment after variance pleaded, is not considered. Beyond all doubt, amendments of the declaration before plea, are in the discretion of the court (1 Tidd’s Pr. 697), and we do not perceive that the case is different after plea filed. As to the manner of disposing of the plea after the amendment, I think that issue should have been joined to be tried in the usual way. But counsel for appellant did not insist upon this.

They subsequently pleaded in bar of the action, and cannot now be heard to object that the plea in abatement was not disposed of.

The judgment of the district court is affirmed, with costs.

Affirmed.