Snowy Peak Mining Co. v. Tamarack & Chesapeak Mining Co. ( 1910 )

AILSHIE, J.,

Concurring. — I desire to qualify my concurrence in the opinion in this case with reference to the holding that the amendment proposed did not come too late. This statement is probably correct in some eases, but not as a rule. As a general rule, amendments proposed under see. 4228, Rev. Codes, should be submitted before the close of the trial and the submission of the case. If the amendment is proposed under the provisions of see. 4229, Rev. Codes, at whatever time it may come, a showing must be made sufficient to set in action the discretion of the court to allow the party to amend. That section of the statute was adopted for the purpose of relieving a party from a mistake, an inadvertence, or surprise, or excusable neglect. It is hot a statute conferring a right as a matter of course, but is a statute which sets in operation the discretion of the court. If on the other hand, the amendment is offered under the provisions of sec. 4226, Rev. Codes, in order to make the pleadings conform to the proofs, then the amendment may be made at' any time before judgment.

In the case at bar the proposed amendment presented an ■entirely separate and independent defense and a new issue. Such an amendment came too late after the cause had been tried and submitted to the court, and the court had announced from the bench his conclusions on the case. This is especially true where the party failed to accompany his amendment with any showing that he had been misled, or deceived, or surprised, or mistaken as to his rights or the facts in the case, or in any way brought himself within the purview of sec. 4229 of the code.

(February 23, 1910.)