Van Abel v. Wemmering

• Decision Date: 13 April 1914
• Citation: 146 N.W. 697,33 S.D. 544
• Parties: VAN ABEL v. WEMMERING.
• Court: South Dakota Supreme Court

146 N.W. 697

33 S.D. 544

VAN ABEL v. WEMMERING.

Supreme Court of South Dakota

April 13, 1914

Appeal from Circuit Court, Hyde County; John F. Hughes, Judge.

Action by John Van Abel against G. F. Wemmering. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

M. C Cunningham, of Highmore, and A. W. Wilmarth, of Huron, for appellant.

Boucher O'Brien, Johnson & Auldridge, of Highmore, for respondent.

McCOY J.

Equity action by vendor to compel purchaser to specifically perform a contract by accepting deed to and paying for certain real estate. Findings and judgment were in favor of plaintiff, and defendant appeals.

Defendant appellant, assigns as error certain rulings of the court in relation to the amendment of the complaint. There was a specific contract entered into between plaintiff and defendant, which contract described the lands as being situated in township 113. The original complaint also described the lands as being in township 113. As a matter of fact said lands intended to be described were situated in township 112. The mistake was discovered at the time of the beginning of the trial, and plaintiff asked permission of the court to amend the complaint by changing the number of the alleged township from 113 to 112, and also to amend by adding a clause to have said contract reformed so as to change the number of the township stated in the contract from 113 to 112. The court permitted the amendment without terms, and refused to allow defendant 30 days in which to prepare and serve answer to the amended complaint, and also refused to continue the cause over the term on affidavits of defendant and his counsel stating that they were surprised by such amendment, and were not prepared to meet the issues presented by the amended complaint. We hold that all these rulings of the learned trial court were proper, and that there was no error therein. It appears that the defendant, at the time the contract was made, and for a long time prior thereto, was residing upon the very land intended to be described in said contract, and which was the subject of said contract of sale. It would be impossible for a defendant, or his attorneys, by affidavit to swear hard and strong enough to convince any honest court, under such circumstances, that such defendant, or his attorneys, were surprised by reason of such an amendment, or that he was entitled to a continuance over the term by reason thereof. Such amendments, and the question of terms, and the granting of continuances by reason of such amendments, are all matters within the discretion of the trial court, and are only reversible on appeal when there has been a clear abuse of judicial discretion. Every attorney knows and has notice in advance what the powers of the trial court are to permit such amendments, and that continuances will not be granted by reason thereof unless the rights of the opposite party would, in some manner, be prejudiced by proceeding with the trial. Nothing of that character appears in this case. The mistake sought to be corrected by the amendment was a clerical error only. The defendant all the time knew just what land was the subject of the contract. All the changes in the original answer, occasioned and made necessary by the amendment permitted, could very easily have been made, by any ordinary attorney, within a very few minutes.

The contract upon which respondent bases his right to specific performance, in substance, provided that, on the 1st day of March, 1912, respondent, as the owner, would convey the title to said land to appellant, as purchaser, in consideration of the sum of $10,875.90, to be paid as follows: $250 on the execution of the contract; $3,380 by assuming a mortgage incumbrance to that amount then upon said land; $7,245.90 cash on the 1st day of March, 1912. The contract was entered into on the 11th day of August, 1911. The next day following appellant went to respondent and expressed a desire to be released from said contract; asked respondent what he would take to release him and cancel the contract; said he would give respondent $100 if he would release him. Respondent refused to consider the proposition to release appellant or cancel the contract, and nothing more was said between them until March 1, 1912. The court made a finding of fact that on the day...