Wandel v. Wandel

• Decision Date: 15 April 1926
• Docket Number: 5900.
• Citation: 248 P. 864,76 Mont. 160
• Parties: WANDEL v. WANDEL.
• Court: Montana Supreme Court

248 P. 864

76 Mont. 160

WANDEL v. WANDEL.

No. 5900.

Supreme Court of Montana

April 15, 1926

Appeal from District Court, Roosevelt County; S.E. Paul, Judge.

Action for divorce by George Wandel against Effie Wandel. From a judgment for defendant on her cross-complaint, plaintiff appeals. Affirmed.

J. K Bramble, of Wolf Point, for appellant.

Frank M. Catlin, of Wolf Point, for respondent.

HOLLOWAY J.

This action was instituted by the plaintiff to secure a divorce on the ground of willful desertion. The original answer made by the defendant was merely a general denial of the allegation of the complaint which charged such desertion. The record does not disclose when the complaint or answer was filed, or when the order was made setting the cause for trial; but on June 12, 1925, upon notice, defendant moved the court for leave to file an amended answer, and the motion was granted without terms. The amended answer, in addition to the denials, included a cross-complaint, which charged the plaintiff with extreme cruelty and demanded that defendant be granted a divorce upon that ground. A reply was filed, and the cause brought to trial on June 27. By answers to special interrogatories, the jury found that defendant did not desert the plaintiff, and that plaintiff had been guilty of extreme cruelty towards the defendant. These findings were adopted by the trial court, which rendered a judgment in favor of the defendant, dissolving the bonds of matrimony and awarding her alimony in the sum of $500, to be paid by the plaintiff in monthly installments of $25 each. From that judgment plaintiff has appealed.

1. The contention that the trial court committed reversible error in permitting the amended answer to be filed cannot be sustained. The application to amend was addressed to the sound legal discretion of the trial court, and the order allowing it is subject to review only upon a showing of an abuse of that discretion. Section 9187, Rev. Codes 1921; Callan v. Hample, 73 Mont. 321, 236 P. 550. The amendment was allowed 15 days prior to the trial, and if plaintiff were taken by surprise he failed to indicate it by applying for a continuance. Under these circumstances, it cannot be urged successfully that the court abused its discretion. Sandeen v. Russell Lumber Co., 45 Mont 273, 122 P. 913.

2. It is urged that the trial court erred in failing to impose terms as a condition precedent to filing the amended answer but with this contention we do not agree. Our statute of amendments (section 9187, above) declares that:

"The court may likewise, in its discretion, after notice to or in the presence of the adverse party, allow, upon such terms as may be just, an amendment to any pleading," etc.

In construing a statute practically identical with ours, the Supreme Court of Wisconsin said:

"The statute does not, under all circumstances, require the imposition of terms as a condition of granting leave to amend a pleading. The whole subject, as to the justice of the amendment, and whether it shall be granted upon condition, and, if so, what condition, is left to the sound discretion of the trial judge. The imposition of terms has a twofold object: The infliction of a penalty for the negligence requiring a remedy by the amendment; and to give to the adverse party an equivalent for the injury to him by delay or increased expense because of the amendment. Where there is neither a reason for the infliction of a penalty, nor prejudice to the adverse party of any kind to be compensated for, even the calling of adverse counsel into court for the purposes of the amendment, as was the situation in this case, it cannot be said on appeal that the failure of the trial court to impose terms was either an abuse of discretion or a violation of any rule of

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