Hoffman v. Mann

• Decision Date: 10 June 1903
• Citation: 75 S.W. 219
• Parties: HOFFMAN et al. v. MANN.
• Court: Kentucky Court of Appeals

75 S.W. 219

HOFFMAN et al. v. MANN.

Court of Appeals of Kentucky.

June 10, 1903

Appeal from Circuit Court, Kenton County.

"Not to be officially reported."

Proceeding by Melissa Mann against Robert Hoffman and others. Judgment for plaintiff, and defendants appeal. Affirmed.

D. A Glenn, for appellants.

Hall &amp McLean, for appellee.

NUNN J.

The appellee in March, 1902, caused a justice to issue a writ of forcible entry against appellants. The jury in the justice's court found, by their inquest, that appellants were guilty of the forcible entry complained of. Appellants filed, within three days, a traverse, and the justice stayed all further proceedings on the inquisition, and delivered to the clerk's office of the circuit court of that county the whole of the papers and proceedings with reference thereto. In the circuit court the traversee joined issue on the traverse. The appellants, in the circuit court, moved to dismiss the writ because it was failed to be stated therein that appellee, at the time of the forcible entry complained of, was in the peaceable possession of the real estate therein described. During the pendency of this motion the appellee filed an amendment curing this defect, to all of which appellants objected and excepted, and this is the main ground presented by appellants for a reversal of this case.

On the trial in the circuit court the jury, under proper instructions, found that the inquisition in the justice's court was true, and that the appellants were guilty of the forcible entry complained of.

The defect in the warrant before amended in the circuit court was fatal. See cases of Taylor & Speed v. Monohan, 71 Ky. 239; Powers, etc., v. Sutherland, 62 Ky. 152; and Burbage v. Squires, 60 Ky. 79. In the last case the court, in effect, said that the same case should be tried anew, and that no new case should be tried, and that the claim sued for could not by amendment be increased in amount beyond the jurisdiction of the inferior court. In the case in 71 Ky. 239, the same defect existed in the writ as existed in this case, but no amendment was offered or allowed at any time, and the Court of Appeals determined that the warrant was fatally defective. In the case in 62 Ky. 152, this court used this language: "Nor did the court err in refusing to allow the filing of the 'amended petition and warrant,' as it is styled. Without deciding whether a warrant in forcible entry and detainer is amendable at all--especially after a traverse to the circuit court-- we deem it sufficient to say that the amendment offered was not only defective in failing to show that the relation of landlord and tenant existed between the parties, but it presented an entirely new case by introducing a number of new parties plaintiff. This cannot be allowed."

In this case we see that the court refrained from saying whether or not an amendment in proper form was allowable. Section 134 of the Code of Practice, so far as applicable to this case, is as follows: "The court may at any time in furtherance of justice, and on such terms as may be proper, cause or permit a pleading or proceeding to be amended *** or a mistake in any respect or by inserting other allegations material to the case. *** And if a proceeding taken by a party fail to conform in any respect to the provisions of this Code, the court may permit an amendment of such proceeding so as to make it conformable thereto. *** The court must in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect."

The court in the case of Allen v. Brown, 4 Metc. 344, in discussing this section of the Code, used this language "It is clear that the plaintiff in this case may be allowed to amend on proper terms, if that section applies to proceedings by attachment on affidavit. *** It speaks of...