Schieffelin v. Whipple , 10 Wis. 81 ( 1859 )

By the Court,

Paine J.

Conceding in this case that the court below was right in rejecting the note offered in evidence, under a declaration containing the common counts only, yet we think it erred in refusing to allow the plaintiff to amend upon terms. In disposing of this motion no stress was placed upon the fact that the court had already directed a nonsuit. That was done after‘the plaintiffs’ counsel, in answer to a question whether he had further evidence, had said, “if the note was not admitted, he supposed the suit must go down.” But immediately, and before any judgment was entered, on discovering that if driven to a new suit, his note would be barred by the statute of limitations, he moved for leave to amend upon terms. The court very properly still entertained the motion, and considered-it upon its merits; but erred in overruling it. The power of amendment is frequently and justly exercised in such cases. And the fact that if driven to a new action, the party’s claim will be barred, is of controlling influence in favor of its exercise. This court has already decided that amendments should be allowed in such cases, in the case of Shoyer vs. Fox River Railroad Co., 7 Wis. 365. Of course it should have been, upon just terms, including a continuance, if the defendants were not prepared for trial.

The judgment is reversed with costs, and the cause remanded for further proceedings.