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Sedgwick, J,, dissenting.
The majority opinion announces two neAv propositions of Iuav, neither of which have been so determined heretofore by this court.
1. The first proposition is that, in an action for fraud where facts constituting the alleged fraud are stated, an amendment Avhicli alleges additional facts constituting the same fraudulent transaction changes substantially the claim or defense, so that such an amendment cannot be allowed in any case after judgment. Section 144 of the code contains the language: “The court may, either before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading * * * Avhen the amendment does not change substantially the claim or defense by conforming the pleading or proceeding to the facts proA7ed.” What does the statute mean by the Avords “change substantially the claim”? In one sense of these words, any change of a petition which would admit of a different decision than could be supported by the original petition Avould of course be a substantial change, but unless such a change can be made — that is, unless a pleading can be amended so as to support a different judgment — there would never be any object in making the amendment. The purpose of allowing the amendment is to support a judgment that otherwise Avould not be supported, and this of course, in the ordinary sense of the word, is a very substantial change. We have, however, generally held that to change “the claim” is to substitute a neAV cause of action for the former one or to add a neAv cause of action to the former one, and I suppose that the purpose of this proviso in the statute is to prevent an amendment that Avould allege a neAv cause of fiction, and not to prevent any change or amendment that Avould add to or make more certain the cause of action upon Avhich the suit was based. And then, again, to change substantially the claim is not limited to changing the claim alleged in the original pleading, but under the liberal practice of our code must be
*180 held to mean the claim actually tried in the lower court, whether it was in the pleadings or not. I think that the opinion gives the wrong construction to the language of the statute in that regard.2. I am still more strongly opposed to the new construction which is given to the statute in another respect. The second paragraph of the syllabus is: “The power of the supreme court to permit an amendment of a pleading to conform to the proof is, as a rule, only exercised to sustain a judgment, and not to reverse it, except where it clearly appears that a refusal to permit the amendment would cause a miscarriage of justice.” There are many decisions of this court in which it is held that a pleading may be amended after judgment to conform to the proofs, and in all of them the language is general and no distinction made as to whether such amendment will sustain or reverse the judgment of the trial court. The first case cited and reviewed in the majority opinion is Humphries v. Spafford, 14 Neb. 488. The opinion was by Chief Justice Lake. The petition in foreclosure failed to allege that no payments had been made on the note, the allegation being that no payments were made at the particular time when the notes fell due. The petition also failed to allege that the defendant fajled to pay interest “within ten days after due.” The allegation was that he failed to pay it on the particular day on which it came due. The trial court therefore held that one of the notes was not due and refused to give the plaintiff judgment thereon. The plaintiff appealed, and the supreme court held that upon appeal her petition might be amended in accordance with the evidence upon the trial, and that the case would be remanded to the trial court for that purpose, if she decided to so amend. This was a direct holding that the pleadings would be amended for the purpose of reversing the judgment of the trial court. In regard to this case the opinion says: “The ruling there, if justifiable at all, is under the clause of section 144, ‘or by correcting a mistake in the name of a party, or a mistake in any other
*181 respect.’ ” But section 144 of the code provides that a pleading may be amended “by correcting a mistake in the name of the party, or a mistake in any other respect, or by inserting other allegations material to the case.” Inserting other allegations material to the case is precisely upon the same basis in the section as correcting a mistake in the name of the party, or a mistake in any other respect, and the fact that the pleading may be amended by inserting other allegations “material to the case” shows clearly that the next clause, that amendments may be made when they do not “change substantially the claim,” means that they may be made unless a new cause of action or defense is stated that has not been tried below. The opinion cites early cases, mostly from inferior courts, that hold that amendments will never be allowed for the purpose of reversing a case, but I think that those cases are hostile to the language of the statute, which does not limit the allowing of amendments to supporting the judgment, but requires them to be made when it is “in furtherance of justice” to have them made. In Humphries v. Spafford, supra, the leading case above referred to, it was in the interest of justice to the plaintiff to allow her to amend her petition to conform to the proofs which were made upon the trial, and reverse the judgment of the district court refusing to allow her to recover upon both of her notes, and I think the decision was right. It has never been criticised by this court, but has been apparently universally followed and ought to be adhered to. Suppose that in an action to foreclose a mortgage the plaintiff failed to malee the technical allegation that there had been no proceedings at law to recover the debt, both the plaintiff and the defendant, as well as the court, supposed that that allegation was in the petition and tried the case fully upon that theory, the proof showing plainly that there had been no proceedings at law, but the trial court for some unaccountable reason refused to enter judgment for the plaintiff and the plaintiff appeals to this court, and for the first time it is ascertained that the*182 allegation that no proceeding at law had been had was omitted from the petition, would this court refuse to allow such amendment and refuse to allow the plaintiff to recover, that being the only possible legal objection to such recovery?Unless the case has been tried in the lower court as though the proposed, amendment was already in the pleadings, the amendment is never allowed in this court either to sustain or to reverse the judgment. If it was so tried, and no objection was made to the evidence because of the defect in the pleading and the court or jury determined the issue as tried, the amendment will be allowed in this court, if necessary, to make the pleadings conform to the case actually tried, or the case will be disposed of as though the amendment had been made. Lawsuits were not invented to afford sparring matches to exhibit the cuteness of attorneys at the expense of justice to litigants, at least they are not so regarded in modern times in this state. The courts are not looking for immaterial technicalities to defeat justice.
The second paragraph of the syllabus, which is also quoted in the opinion as the view of the majority of the court, does not harmonize with the discussion in the opinion, and I think.that discussion is misleading in view of the quotations made from the early cases in other jurisdictions, which quotations do not fully present the real point decided by those courts. The second paragraph of the syllabus makes an unnecessary and incorrect distinction in amendments in this court. The true test is, are they in furtherance of justice? And that depends upon how the case was tried in the court below. If the parties, without any suggestion of defect in the pleadings, have fully and fairly tried the cause, the pleadings in this court should be made to state the cause actually so tried, or the cause should be disposed of here' as though that had been done.
Hamer, J., concurs in this dissent.
Document Info
Docket Number: No. 16,731
Citation Numbers: 92 Neb. 167, 138 N.W. 122, 1912 Neb. LEXIS 17
Judges: Fawcett, Hamer, Letton, Rose, Sedgwick, Took
Filed Date: 10/18/1912
Precedential Status: Precedential
Modified Date: 10/18/2024