Cashman v. Anderson

• Decision Date: 31 October 1857
• Citation: 26 Mo. 67
• Parties: CASHMAN et al., Defendants in Error, v. ANDERSON et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

26 Mo. 67

CASHMAN et al., Defendants in Error,

v.ANDERSON et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1857.

1. Where an answer is stricken out for insufficiency, and the defendant prays the court to grant him time in which to file an amended answer, the court is not bound to grant delay, as a matter of right, where it would operate to delay justice or injure the plaintiff, but may, in the exercise of a sound discretion, refuse to grant time unless the defendant will state the character of the amendment he desires to make.

2. Where a motion to strike out an answer is taken up and disposed of on the day it is filed--both parties being present and neither objecting--this action of the court can not be assigned for error.

Error to Lewis Circuit Court.

J. G. Blair, for plaintiffs in error.

Wagner, for defendants in error.

RICHARDSON, Judge, delivered the opinion of the court.

This suit is on a negotiable promissory note executed by the defendants to James G. Guthrie and endorsed by him before its maturity to the plaintiffs. At the return term the defendant Thompson F. Anderson filed his answer, but his co-defendant did not answer. The case was set on the docket for trial on the seventh day of the term, and on the fifth day the plaintiffs filed their motion to strike out the answer for the reason that it did not contain matter constituting a defence. The motion was heard on the day it was filed and sustained, and thereupon the defendant asked leave to amend his answer without stating in what particulars he desired to amend, but the court refused leave, and the cause being submitted to the court judgment was rendered for the plaintiffs. Thereupon the defendant filed his motion to set aside the judgment for the reason that the court improperly refused him leave to amend his answer and because the court improperly gave judgment. This motion was overruled, and the defendant excepted also to the refusal of the court to permit the answer to be amended. The record does not show that any exception was taken to the action of the court in sustaining the motion to strike out the answer.

Though we think the answer was insufficient, it is unnecessary to decide that question, for it does not appear that any exception was taken to the ruling on that point.

The liberal spirit of our system of practice encourages the exercise of a large discretion in the courts in permitting amendments, but it would be unwise to declare that a party, whose pleading is...