John Colhoun & Co. v. M. Crawford & Co. , 50 Mo. 458 ( 1872 )

Bliss, Judge,

delivered the opinion of the court.

Suit was brought upon two promissory notes, and in the original petition the plaintiffs failed to allege their partnership and that of defendants. Defendants demurred and plaintiffs had leave to amend, which was at once done by inserting the omitted allegations and filing the petitions anew. Defendants then applied for a change of venue from the Common Pleas to the Circuit Court, and obtained leave in said court to answer, but not answering, interposed several motions which were overruled, and the court permitted the plaintiffs to file an amended petition instantcr, containing in the body of it the interlined allegations. Defendants then moved for a continuance of the cause because of such amendments, but the court overruled the motion, and no answer being filed, gave judgment by default.

The chief error assigned is the refusal of the court to grant a continuance. Some eight months had elapsed since the plaintiffs were entitled, under the statute, to a judgment in the Common Pleas. No defense upon the merits had been set up, and every step seems to have been for delay merely. In consequence of the omission of a formal allegation it had become necessary for plaintiffs to amend their petition, and the amendment was irregularly made. Taking advantage of this irregularity, after having removed the cause to another court, the action of defendants made it necessary for the plaintiffs to file an amended petition ; but this of itself did not entitle them to a continuance. The statute (Wagn. Stat. 1040, § 10) provides that “where a party shall amend any pleading or proceeding, and the court shall be satisfied by affidavits or otherwise that the opposite party could not be ready for trial in consequence thereof, a continuance may be granted to some day in the same term, or to another term of the court.” Defendants do not pretend to bring themselves within this section ; do not allege that they could not be ready for trial in consequence of the amendments; do not even put the allegations in issue, and had no shadow of claim to a continuance. Not only should the court be satisfied that the party could not be ready for trial, and that his inability arises from the amendment, which implies that he wishes to put in issue the new facts embraced in sucb amendment, but it should also appear that he has a meritorious defense to the claim shown by the new matter as well as by the original pleading.

Counsel rely upon a rule of the Circuit Court which provides that every material amendment after answer to the pleading amended, is cause for continuance. This rule stretches the statute, and, so far as it contradicts or goes beyond it, should not be enforced. But, even if valid, the defendants do not bring themselves within it, for they have never answered. The term “ answer,” to make it at all consistent with the statute, must mean an answer to the merits, and such answer has never been made.

This appeal is so clearly made to enable the defendants to get further time upon their debt, that the plaintiffs are entitled to an affirmance and to the ten per cent, damages claimed by them.

The other judges concur.