Opinion
No. 4617
Opinion Filed June 15, 1917.
1. APPEAL AND ERROR — Discretionary Ruling — Permission to Amend Answer. Granting permission to amend an answer after a case is called for trial, when the amendment does not substantially change the defense, rests in the sound discretion of the court, and, unless there is an abuse of such discretion prejudicial to the rights of a party, there is no error.
2. APPEAL AND ERROR — Presentation Below — Refusal of Instructions. Record examined, and held the instructions fairly state the law, and no error appears in the reception or rejection of evidence.
(Syllabus by Bleakmore, C.)
Error from County Court, Creek County; Warren H. Brown, Judge.
Action brought in a justice's court by Ed Abraham against W. W. Provance. Judgment for defendant in the justice court and on appeal to the county court, and plaintiff brings error. Affirmed.
Wm. L. Cheatham, for plaintiff in error.
This case was commenced in a justice court in Creek county, by the plaintiff in error, as plaintiff, against the defendant in error, as defendant, on an alleged account stated, the items of which consisted of certain sums claimed to be due on a promissory note and an account. There was judgment for defendant in the justice court, from which an appeal was had to the county court of said county, where, upon trial to a jury, judgment was again rendered for defendant.
There are six assignments of error going to the action of the court: (1) In the giving and refusing of instructions; (2) in the reception and rejection of evidence; and (3) in permitting an amendment to the answer.
We have examined the instructions of the court, and, in our opinion, they fairly state the law applicable to the case. The record does not contain an exception to the refusal of the court to give the instruction requested by plaintiff, and therefore the action of the court in that respect cannot be reviewed.
Notwithstanding the substance of the testimony on account of the admission of which complaint is made is not set out in the brief, we have examined the entire record, and find no error either in the admission or rejection of evidence.
After the jury was impaneled the court permitted the answer to be amended by interlineation; but by such amendment there was no substantial change of defense. It is the established rule in this jurisdiction that the allowance of amendments to pleadings either before or after judgment, when the same does not change substantially the claim or defense, rests in the sound discretion of the court, and, unless it is made affirmatively to appear that by abuse of such discretion the complaining party has been prejudiced, there is no error.
It follows that the judgment of the trial court should be affirmed.
By the Court: It is so ordered.