Hanchey v. Brunson

• Decision Date: 14 February 1913
• Citation: 181 Ala. 453,61 So. 258
• Parties: HANCHEY v. BRUNSON.
• Court: Alabama Supreme Court

61 So. 258

181 Ala. 453

HANCHEY v. BRUNSON.

Supreme Court of Alabama

February 14, 1913

Appeal from Circuit Court, Coffee County; H.A. Pearce, Judge.

Action by William J. Hanchey against John F. Brunson. Judgment for defendant, and plaintiff appeals. Affirmed.

See also 56 So. 971; 59 So. 1013.

A.G Seay, of Troy, for appellant.

J.A Carnley, of Elba, for appellee.

ANDERSON J.

The sole question presented by this appeal is whether or not the trial court can be reversed for requiring of the plaintiff the payment of the cost of the term as a condition precedent to the allowance of the amendment of the complaint.

Section 5367 of the Code of 1907 authorizes amendments during the progress of the case, without cost or delay, unless injustice will thereby be done the opposite party. It must be observed that a party has the right to amend in any instance covered by the statute, and at any time during the progress of the case, and without cost or delay unless an injustice is thereby done the opposite party. If the proposed amendment should take the opposite party by surprise, or necessitate a continuance of the case, the trial court would no doubt have the discretion to impose cost or a continuance, one or both as a condition precedent to the allowance of the amendment. On the other hand, if the amendment does not take the opposite party by surprise, and he is ready to meet the amendment and proceed with the trial of the case, it is difficult to see how the said amendment can work an injustice to the opposite party, and, if it does not do so, the amendment should be allowed without cost or delay. The present amendment was attempted after the parties had announced ready for trial and had selected the jury, but could not have been necessitated by a surprise as to the evidence, as no proof had been taken when it was offered. The amendment predicated the right of action upon a prosecution commenced before a different officer from the one named in the original complaint, and it may have taken the defendant by surprise, and he may have wanted a continuance in order to meet the new phase of the case, and, if the said amendment would necessitate a delay, the trial court had the authority to impose reasonable terms upon the plaintiff, as a condition precedent to the allowance of same. The bill of exceptions does not purport to set out all the evidence, and, from aught that appears, the defendant may have...