Smith v. Dragert ( 1886 )

Lyoit, J.

1. We are of the opinion that the granting of leave to amend the answer so as to interpose the statute of limitations as a defense to the action was no abuse of the discretion of the court. It appears by the affidavits read on the hearing of the motion for such leave that the plaintiff practically abandoned his land by neglecting for nearly twenty years to pay any taxes upon it, and that during most of that time the grantor of the defendant paid such taxes. Moreover, the defendant has cleared and improved the land at a large expense. The plaintiff claims that the taxes for all those years were void for various specified reasons, and alleges this as an excuse for not paying them. The excuse is not satisfactory. Before holding that taxes on a given parcel of taxable land had been illegally levied for eighteen or twenty consecutive years, we should require much more definite and satisfactory proof of the fact than we find in this record. Indeed, we should not undertake to decide such a proposition on mere ex parte affidavits.

Affidavits were read on the motion showing that the defendant or Ms grantor took forcible possession of the land, two years before this action was commenced, by ejecting plaintiff’s agents and servants therefrom. It is not perceived bow that fact can be of any importance on the question of discretion. The plaintiff had a summary remedy to regain possession of his land, and it is his own fault that he did not resort to it.

It satisfactorily appears that the defendant purchased the land in good faith, supposing that he had obtained a good title thereto. This is made apparent by the large sums of money he paid for the land and has since expended upon it,- — • over $2,000 in all. These facts are sufficient to justify the court in exercising its discretion to reheve him.

2. It is claimed that inadequate terms were imposed as a condition of allowing the amendment, and Morgan v. Bishop, 61 Wis. 407, is relied upon as sustaining the position. In that case the real costs imposed were only $10. True, there was a direction to pay a judgment in this court against the moving party, but that imposed no additional obligation upon him. Here the terms imposed are the payment of $10 motion costs, and all taxable costs accruing to the plaintiff after the filing of the original answer. This imposes an additional obligation upon the defendant. The distinction between the two cases is a substantial one.

It appears, by an affidavit read on the hearing of the motion, that plaintiff has expended in the cause $300 over and above taxable costs, $200 of which was so expended before the motion for leave to amend was made. The necessity for such expenditure, or what it was for, does not appear.

The general rule in ordinary cases is conceded to be that the party amending his pleading will be required to pay all taxable costs up to the time of amending, and also costs for opposing the motion. Such are, substantially, the terms here imposed. We find nothing in this record which necessarily takes the case out of the general rule, and we con-elude that the terms imposed by the circuit court are within the range of a sound judicial discretion. The order must be affirmed.

By the Court.— Order affirmed.