Kennedy v. Waugh , 23 Wis. 468 ( 1868 )

DixoN, C. J.

The mistake of the defendant’s attorney in not putting in an answer in the first instance, denying the collusion in the procurement of the tax deed, as charged in the complaint, is conceded by counsel for the plaintiff to have been a sufficient ground for an application for leave to amend at any time before or at the trial; and the only question is, whether the right to such relief was lost by delaying to make the application until after trial and judgment. This is a question of diligence on the part of the attorney for the moving party. If the mistake was discovered before trial, so that leave to amend could have been asked for, or at the trial under circumstances where such application ought to have been made, or if the attorney for the respondent was inexcusably negligent in not having discovered the mistake at an earlier period, then the application after judgment should be denied. ' The mistake here was discovered at the trial. Of this there can be no doubt. Was the attorney guilty of negligence in not having discovered it before ? We think not. Having fallen into the mistake, and never doubting that the answer was such as to let in the defense, it is very natural that it should not have occurred to him to examine the pleadings lest there might be some possible defect by which the defense would be excluded. At all events, his failure to examine the pleadings was, under the circumstances, not such inexcusable negligence as ought to defeat the application.

Should the motion for leave to amend have been made at the trial ? This is the most difficult point in the case. Ordinarily we should say that the motion could not with safety be omitted ; but in view of the facts of this case we are inclined to hold the omission excusable on the ground of surprise, that being one of the grounds for relief mentioned in the statute. The attorney was no doubt greatly surprised by the objection, which was so suddenly sprung upon him at the trial; and if, in the confusion of mind which ensued, he omitted to make the motion, it seems to us that his client ought not to lose the benefit of a valid defense to the action as a consequence of such omission. The statute under which the application is made is a remedial one, and as such has received a liberal construction at the hands, of this court, as will be seen by reference to the following cases : Catlin v. Henton, 9 Wis. 497, note; Johnson v. Eldred, 18 id. 482; Hanson v. Michelson, 19 id. 499; Holden v. Kirby, 21 id. 149; Wicke v. Lake, id. 410. We are of opinion, therefore, that the order appealed from was correct, and should be affirmed.

By the Court. — Order affirmed.