Brisbois v. Lewis , 9 Colo. 494 ( 1886 )

Beck, C. J.

Two rulings of the county court are relied upon by Brisbois, who was defendant below, as sufficient grounds for reversing this judgment. The first permitted the plaintiff to amend his complaint on the trial by the addition of an allegation that the note sued on was “due in six months after the day of the date thereof;” the second denied the defendant’s motion for twenty days’ time to answer the complaint as amended, and required him to answer the same instanter. It is argued that these rulings constitute an abuse of judicial discretion. We think otherwise, for the reasons that the issues were not changed by the amendment of the complaint, and consequently the defendant cannot be said to have been taken by surprise, or prejudiced thereby. The original complaint, notwithstanding the defect, advised the defendant that the object of the action was to obtain judgment for the full amount of the note. The defendant, aware of the plaintiff’s omission to allege the maturity of the note, appears to have saved up the objection to be sprung on the trial, and answered fully to the merits of the cause of action. His principal defense consisted of a cross-demand against Curtis, the payee of the note, exceeding in amount the amount of the note. In order to avail himself of this defense as against the plaintiff Lewis, he attacked the good faith of the assignment, and alleged that the note still belonged to Curtis. The amendment of. the complaint in no manner prejudiced this defense. It did not even necessitate an amendment of the answer. If an amendment of that pleading was necessary, it did not arise from the cause or ruling complained of. The real grievance of the defendant appears to be that the court defeated his scheme to compel the plaintiff to submit to a nonsuit, or to take a judgment for interest only. Withholding all objections to the complaint until the plaintiff had introduced his testimony in chief, he then points out the defect, which the court very properly allowed to be cured by an immediate amendment of the complaint, so as to include ■ the plaintiff’s whole cause of action.

We are of opinion the errors assigned are without ' merit, and that the rulings complained of are within the spirit of the code provisions relating to amendments of pleadings, especially section 81, p. 24, Civil Code, 1883.

The judgment is affirmed.

Affirmed.