Blasl v. Peterson

• Decision Date: 05 June 1952
• Docket Number: No. 7310,7310
• Citation: 78 N.D. 915,53 N.W.2d 856
• Parties: BLASL et al. v. PETERSON.
• Court: North Dakota Supreme Court

Page 856

53 N.W.2d 856

78 N.D. 915

BLASL et al. v. PETERSON.

No. 7310.

Supreme Court of North Dakota.

June 5, 1952.

Syllabus by the Court.

1. An order made after notice and hearing denying defendant's motion for leave to serve and file an amended answer is appealable.

2. The allowance or denial of an application for leave to serve and file an amended answer is a matter resting largely in the discretion of the trial court and its ruling will not be disturbed by the Supreme Court unless a clear case of abuse of discretion is shown.

3. In the instant case it is held, for reasons stated in the opinion, that it is not shown that the trial court abused its discretion in denying defendant's motion for leave to interpose an amended answer.

Wm. L. Paulson, Valley City, and Philip L. Scherer, Winthrop, Minn., for appellant.

Roy K. Redetzke, Fargo, for respondent.

CHRISTIANSON, Judge.

This is an appeal from an order denying defendant's motion for leave to serve and file an amended answer. The action was brought in December 1946 to recover upon a certain check in the sum of $433.50 which it is alleged that the defendant executed and delivered to the plaintiff on August 2, 1946; and which check it is alleged was presented to the bank on which it was drawn on August 8, 1946, in due course of business for payment but was not paid and that due notice of such non-payment was given to the defendant but that the defendant has failed to pay the amount of the check or any part thereof. The defendant appeared by his attorney and interposed an answer wherein he admitted that the plaintiff is a sole trader doing business under the frim name and style of Farmers Supply Company but denied specifically all the other allegations of the complaint. On December 16, 1950, the defendant's attorney moved the court pursuant to notice for leave to amend his answer. The proposed amended answer admitted the execution and delivery of the check described in the complaint and alleged that the check was executed in payment of a certain piece of farm machinery sold by the plaintiff to the defendant, that it was represented and guaranteed that if the said machinery did not work satisfactorily that the defendant could return it and get his money back or the indebtedness would be cancelled; that in reliance upon such guarantee and representation, defendant took the machinery home and attempted to use it but found that it was defective and that it was not reasonably fit for the purpose for which it was purchased and that after about a day and a half's use he learned that the express and implied warranties were broken; that the defendant thereafter notified the plaintiff of the defects and asked him to correct the same but that plaintiff failed and refused to do so and that thereafter the defendant rescinded the purchase of the machinery and offered to return same to the plaintiff; that the plaintiff refused to accept the machinery and has failed to return and cancel the check.

No showing by affidavit or otherwise was made in support of the application for leave to serve and file an amended answer. Defendant's counsel merely presented the proposed amended answer. The trial court after due consideration made an order denying defendant's application for leave to serve and file an amended answer, and filed a memorandum decision wherein he said, in part:

'Notice of trial was served and filed together with a note of issue in January, 1947, but the papers were not filed in the office of the Clerk of this Court until January, 1948, too late to place the said action on the calendar for trial at the February, 1948, term of this court. The parties later agreed by correspondence to waive a jury trial and to have the matter heard by the court.

'Five regular terms of the court were held between the date when the action was placed upon the calendar for trial and the date of the service of defendant's motion for leave to amend. Correspondence between the attorneys for plaintiff and the Clerk of the court discloses that plaintiff attempted to have the case set for trial several times and that such attorneys also corresponded with defendant's attorney attempting to get the action on for trial before the court. * * *

'No explanation was offered at the hearing on said motion as to why such defense was not interposed at the time the first answer to the action was made by defendant.

'During the pendency of the action the attorney for plaintiff, who drew the original complaint, has closed his office and is no longer engaged in the practice of law in this state. The present attorney for plaintiff * * * had, until service of the present motion, the right to believe that although defendant was cognizant of the proposed defense that he had elected to waive the same and to stand upon his original defense of general denial.'

Respondent's counsel has moved the court to dismiss the appeal on the ground that the order is not appealable. The motion must be denied. Under the rule heretofore announced by this court such order is appealable. See LaDuke v. E. W. Wylie & Co., 77 N.D. ----, 44 N.W.2d 204. See, also, County of Pembina v. Nord, N.D., 49 N.W.2d 665. Under the provisions of NDRC 1943, 28-0736, any pleading may be amended as a matter of course at any time within twenty days after it is served or at any time before the period for answering expires. But amendments to a pleading may not be made as a matter of right after the expiration of the time provided by such statute. White v. The Mayor, etc. of New York, 14 How.Prac. 495; Tripp v. City of Yankton, 10 S.D. 516, 74 N.W. 447. Applications for leave to serve and file and amended pleading are addressed to the sound discretion of the trial court. Loverin-Browne Co. v. Bank of Buffalo, 7 N.D. 569, 75 N.W. 923; Ennis v. Retail Merchants Ass'n Mutual Fire Ins. Co., 33 N.D. 20, 156 N.W. 234; Flamer v. Johnson, 36 N.D. 215, 162 N.W. 307; Beauchamp v. Retail Merchants Ass'n Mutual Fire Ins. Co., 38 N.D. 483, 496, 165 N.W. 545; 71 C.J.S., Pleading, Sec. 282, pages 598-599; Unger v. Goldman, 12 Cal.App.2d 129, 54 P.2d 1126, 1128.

In Loverin-Browne Co. v. Bank of Buffalo, supra, this court said:

'The allowance or rejection of amendments to pleadings is a matter resting largely in the discretion of the trial court, and its action should not be reviewed by an appellate court except in clear cases of abuse of discretion.' Syllabus 3.

Corpus Juris (4 C.J. 798-799) says:

'Since it will be presumed, on appeal, in the absence of a showing to the contrary, that the discretionary powers of the lower court have been exercised without abuse, the burden of showing abuse is on the party complaining. * * *

'An amendment of pleadings is a matter which rests in the sound discretion of the trial court, and an order granting or denying a motion for an amendment is not reviewable except in case of an abuse of discretion, which must affirmatively appear.' See, also, 5 C.J.S., Appeal and Error, ...