State v. Homey , 44 Wis. 615 ( 1878 )

LtoN, J.

1. It is maintained by the learned counsel for the appellants, that the municipal judge lost jurisdiction of the proceeding against Lewis P. Erdahl, byadjourning the examination more than ten days, and hence that he had no power to take the bond in suit. "We think this position is untenable. True, the statute provides that the magistrate may adjourn the examination in a bastardy proceeding “from time to time, for good cause shown, not exceeding ten days at one time.” Laws of 1868, cli. 79 (Tay. Stats., 740, § 2). But this is a provision for the benefit and protection of the accused; and it is settled in this state that he may waive the benefit of such provisions. The rule is thus established in Rindskopf v. The State, 34 Wis., 217, and Jerdee v. The State, 36 id., 170. The principles upon which the rule rests are sufficiently stated in those cases. It must be held, therefore, that, by applying for and consenting to an adjournment for more than ten days, the accused waived the benefit of the statute in that behalf, and hence the municipal judge did not lose jurisdiction of the proceeding because of such adjournment.

2. The affidavit of the defendant Lars G. Erdahl, offered by him at the commencement of the trial, was not sufficient to put the plaintiff to proof of the execution by him of the bond or instrument in suit. It was offered under sec. 92, eh. 137, E. S. 1858 (Tay. Stats., 1609, § 120). The object of that statute is merely to dispense with proof of the signature of a party to a written instrument, unless the party deny such signature or execution under oath. If he admits the signature, .or fails to deny it, no pi’oof of it is required; and the signature of the appellant Erdahl to the instrument in suit is not denied in his affidavit. Schwalm v. McIntyre, 17 Wis., 232. We conclude that the circuit court properly disregarded the affidavit by refusing to require the plaintiff to prove the signature of the affiant to the instrument before receiving it as evidence.

3. The refusal of the court to permit the appellant Erdalil to amend his answer is assigned as error. It was in the discretion of the circuit court to allow or refuse the amendment, and this court cannot interfere unless that discretion was improperly exercised. The offer was to amend “ so as to deny under oath the execution of the bond, but not to deny that the name attached was his signature.” Standing alone, the proposed amendment was entirely too general, vague and uncertain, to render it the duty of the court to allow it. Indeed, “ it would be improper to allow so ambiguous an issue by way of amendment.” Shipman v. The State, 43 Wis., 386. Such a pleading would not apprise the opposite party of the issue to be met on the trial, and, if not demurrable, it could be reached by a motion to make it more definite and certain.

If reference be had to the affidavit of the appellant ErdaKL, mentioned above, as explanatory of the proposed amendment (and the record furnishes no other explanation of it), we may infer that the grounds upon which he proposed to deny the execution of the bond were, that it was misread and misex-pounded to him. Conceding that to be true, still the court should have been informed, and the proposed amendment should show, by whom and when the fraud was committed; also that the instrument was misread in some material particular — stating the particular portion, and how it was read to him, — and that he executed it in ignorance of its actual contents. The proposed amendment contained none of these most essential averments. If a party would amend his pleading, he must, at least, state enough in his proposed amendment to show the materiality of the amendment. But here, every averment of fact in the proposed amendment may be true, and still the party asking leave to amend may be liable on the bond. Some person may have misread and misex-pounded the instrument to him, and yet, before he executed it, the municipal judge may have read and explained it to him correctly. There is a very strong presumption that he did so. We are unable to say that the refusal of the circuit court to allow the amendment to be made was an improper exercise of its discretion.

4. The only remaining error assigned is, that the court gave judgment for the whole penalty of the bond, and, in addition thereto, for costs. It is claimed that the -whole recovery — damages, or debt, and costs — cannot lawfully exceed the penalty named in the bond. The authorities cited to the proposition do not sustain it. It is too clear for discussion that the judgment in this respect is regular.

By the Court. — The judgment of the circuit court is affirmed.