Slattery v. Labbitt
| Decision Date | 07 June 1947 |
| Docket Number | 8730. |
| Citation | 181 P.2d 601,120 Mont. 183 |
| Parties | SLATTERY v. LABBITT et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Thirteenth Judicial District, Big Horn County; Ben Harwood, Judge.
Action by Austin G. Slattery, doing business under the firm name and style of 'Slattery's Super Service,' against L H. Labbitt and another, individually and as copartners doing business under the firm name and style of 'Crop Production Company,' on an account for goods furnished and services performed. Judgment for plaintiff, and defendant Labbitt appeals.
Affirmed.
M. L. Parcells, of Columbus, for appellants.
Bert W Kronmiller, of Hardin, for respondent.
This is an action upon an account by Austin G. Slattery, doing business as Slattery's Super Service, against L. H Labbitt and Tom Koyama, doing business under the firm name of Crop Production Company. The cause was tried before the court without a jury and after judgment for the plaintiff, Labbitt appeals.
In the original complaint, filed October 4, 1944, Slattery asked for $1,135.72 for goods furnished and services performed for the defendants between the 2nd day of June, 1944, and the 4th day of August, 1944. A general demurrer was interposed on behalf of both defendants and a demand for a bill of particulars made. On October 27, 1944, the plaintiff filed a bill of particulars, itemizing the account and showing an amount due of $1,220.95. Thereafter counsel for defendants secured the court's permission to withdraw as attorney for defendant Koyama and continued to act only for defendant Labbitt.
The cause was set for trial on December 12, 1945. On December 11, 1945, the default of defendant Koyama was entered. On December 12, 1945, immediately before the trial commenced, the court granted plaintiff permission to amend the complaint by designating the defendants as copartners so that under the complaint as amended the action was against Labbitt and Koyama individually and as copartners doing business under the firm name of Crop Production Company. Permission was also granted to amend the allegations and prayer of the complaint to increase the amount alleged to be due and owing from $1,135.72 to $1,220.23. On March 14, 1946, three months after the trial, plaintiff moved to further amend his complaint to conform to the proof at the trial. This amendment changed the complaint so that the allegation was that the indebtedness upon which the action was brought was incurred between the 2nd day of May, 1944, and the 4th day of August, 1944, instead of between the 2nd day of June, 1944, and the 4th day of August, 1944, as originally alleged. The amount requested on the account was unchanged and the various items enumerated in the bill of particulars remained the same.
Error is assigned for the court's action in permitting the amendments both before and after trial. This court has repeatedly declared that the allowance of amendments to pleading lies in the sound discretion of the trial court. In the absence of an affirmative showing of manifest abuse of that discretion to the prejudice of the adverse party, the action of the trial court is not subject to review. See the discussion of this question in Nesbitt v. City of Butte, Mont., 163 P.2d 251. The discretion of the trial court in permitting amendments to pleadings in furtherance of justice extends to amendments during and after trial in order to make the pleadings conform to the proof. Sandeen v. Russell Lumber Co., 45 Mont. 273, 122 P. 913; Hatch v. National Surety Corp., 105 Mont. 245, 72 P.2d 107; Williams v. Thomas, 58 Mont. 576, 194 P. 500; Berthelote v. Loy Oil Co., 95 Mont. 434, 28 P.2d 187; Sellers v. Montana-Dakota Power Co., 99 Mont. 39, 41 P.2d 44; Panisko v. Dreibelbis, 113 Mont. 310, 124 P.2d 997.
Defendant Labbitt was not surprised by the amendment increasing the amount claimed from $1,135.72 to $1,220.23. The bill of particulars requested and filed before the defendant answered set forth the itemized account in approximately the same amount ($1,220.95). The bill of particulars informed the defendants and the court of the exact account upon which the plaintiff relied. Since the defendant knew of the itemized account long before the cause was at issue, he cannot be said to have been prejudiced by the amendment of the complaint as to the amount of the debt or the time during which the debt accrued. The contention that the amendment both before and after trial was untimely is without merit.
Counsel for defendant has directed our attention to section 9186, Revised Codes of 1935, which reads: 'Any pleading may be amended once by the party of course, and without costs, at any time before answer or demurrer filed, or twenty days after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, who may have twenty days thereafter in which to answer, reply, or demur to the amended pleading.'
In its discussion of this section in Griffith v. Montana Wheat Growers' Ass'n, 75 Mont. 466, 472, 244 P. 277, 279, the court said: See also Stillwater County v. Kenyon, 89 Mont. 354, 297 P. 453.
By virtue of this provision of the Code and the decisions thereunder it is defendant Labbitt's contention that his codefendant should have had additional time in which to plead to the amended complaint before the default could have been taken. The amendment permitted the plaintiff to ultimately recover $84.51 more than was originally asked in the first complaint. As was said in Clack v. Clack, 98 Mont. 552, 563, 41 P.2d 32, 35, when the same question was raised: 'There would, no doubt, be considerable force to this argument and the authorities cited by appellant, if the complaint were being made by the Ranches Company [co-defendant]; however, that defendant has not appealed from the judgment; any error committed against it is not subject to review here, except in so far as such error might have affected the rights of appellant.'
Labbitt who had answered, who was served with the amendments and resisted the motion to amend was not prejudiced by the fact that his codefendant was not given additional time in which to plead unless his right to reimbursement from his partner was diminished. Clack v. Clack, supra. Here the partnership was sued as an association doing business under a common name and there had been adequate service on the partnership. Sec 9089, Rev. Codes 1935; Gardiner v. Eclipse Grocery Co., 72 Mont. 540, 234 P. 490; Lindsay Great Falls Co. v. McKinney Motor Co., 79 Mont. 136, 255 P. 25. Therefore, regardless of the amount of the...
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