Correll v. Glasscock.

J. M. Brayton for the appellant.

A. E. House for the appellee.

discretion.

WRIGHT, J.-The petition counts upon a promissory note. Defendant in an amended answer admitted the AMENDMENT: execution of the note, and in a cross-demand claimed damages for a breach of warranty in the sale of a span of horses. The alleged warranty was that the horses were sound. On the trial the warranty proved, if any, was, that the horses did not have the glanders. After the testimony and argument to the jury were closed, defendant asked and obtained leave to again amend his answer, which amendment, however, was not in fact filed until the next day after the coming in of the verdict, which was in defendant's favor. This amendment, conforming to the proof, alleged the warranty to be that the horses had not the glanders. And now, because, as plaintiff claims, the verdict was rendered upon an issue not sustained by the evidence; and because the court allowed this amendment at the close of the evidence, and to be filed after verdict, he asks for a reversal of the judgment. We do not stop to inquire whether the amendment was material,- that is, whether the evidence did not correspond with the answer as it stood at the time the case was tried. However this may be, we are clear that there was no such prejudicial error in the action of the court as to justify a reversal of this case. The variance could not have surprised the plaintiff. It was but the fair exercise of a discretion wisely lodged with the court in allowing an amendment to meet the case made by the proof; all of the essential facts being of record. The amendment was slight, filed, it is true, after verdict, and yet in accordance with leave previously asked and obtained; and under such circum

Brown v. Ellis.

stances we should have to override the plainest teachings of our statute to regard the action of the court erroneous. Upon this subject see Revision, sections 2972, 2973, 2977, 2978, and the cases cited thereunder.

Affirmed.

BROWN V. ELLIS.

1. Pleading: CERTIORARI: ANSWER TO AMENDED PETITION. Where there is an answer to the original petition in a certiorari proceeding, an answer to an amended petition which is but a repetition of the same matter contained in the original one, will not be held necessary.

2. Roads: ESTABLISHMENT OF. Where the contest in the applications for two roads, is, in effect, as to the choice of two routes for the same road, the applications may be considered and acted upon together, by the board of supervisors.

3.

4.

REFUSAL OF SUPERVISOR TO BE SWORN. The establishment of a road will not be held irregular because during the contest before the board of supervisors, one of the supervisors refused to be sworn unless required by the board, when the proposed evidence was merely cumulative, and a correct decision in no manner alone depended upon it.

ESTABLISHMENT CONDITIONED ON PAYMENT OF EXPENSES.

Nor will an order establishing a road on condition that payment of expenses be made by the applicants, be held defective, because no time was fixed by the board for such payment.

Appeal from Linn District Court.

THURSDAY, OCTOBER 29.

CERTIORARI to the board of supervisors of Linn county, to review their action and proceedings in establishing a road upon the petition of defendant. Plaintiff and defendant, with others, petitioned separately for the establishment of two different roads. The road petitioned

Brown v. Ellis.

for by defendant was established by the supervisors. Upon the answer, and return of the supervisors to the writ of certiorari, the cause was dismissed. Plaintiff appeals.

Smyth & Young for the appellant.

Thompson & Davis for the appellee.

BECK, J.-I. It is urged by the plaintiff, that the judg ment of the District Court in dismissing the cause is

1. PLEADING: certiorari:

answer to

amended petition.

erroneous for the following reasons: First, there was no answer to the petition and writ when the court ordered the dismissal. To the original petition defendant answered, and the cause coming on for hearing, defendant obtained leave to file au amended petition, which was done. This petition was substantially the same as the original petition, and required no other answer than the one already filed. Whatever appears in it, in addition to the facts contained in the original petition, demanded no answer.

II. The return and answer of the supervisors, show that the applications for the two roads were considered and acted upon together. The contest, prop

2. ROADS: establishment

of.

erly, was the choice of two routes for one road; it was not claimed that both should be established. They were properly considered together, for the establishing of one would in effect defeat the other.

of supervisor

III. In the contest before the board, one of the super-. visors refused to be sworn as a witness unless required by 3. refusal the board. It appears that his evidence, proto be sworn. posed to be given, was cumulative, and that the right decision of the question in no manner depended upon it alone. It was, therefore, within the discretion of the board to require him to testify. It does not appear that such discretion was abused.

Swan v. Smith.

IV. The order establishing the road is conditioned upon the payment of the expenses thereof, and no time. estab- is fixed for such payment in the order. It

4.

lishment conditioned on payment of

does not clearly appear to us, that, under the expenses. statute, the board upon making such an order should fix the time for the payment of the expenses. Neither does it appear from the record that they were required so to do by plaintiff, and refused. If it be necessary that a time be fixed, it may be done, upon proper application, at any time.

We do not think that the District Court erred in dismissing the cause. Its judgment is therefore

Affirmed.

SWAN et al. v. SMITH et al.

1. Jurisdiction: VENUE: NON-RESIDENT. The fact that a party is a resident of another State, is not of itself sufficient to defeat the jurisdiction of our courts, and, under section 2800 of the Revision, a defendant who has no residence in the State may nevertheless be sued in any county therein where he, or any of his co-defendants in the action, may be found.

2. Attachment: DEMANDS EX-CONTRACTU. A claim for damages resulting from the diseased condition of sheep represented to be sound, is a demand founded upon contract, and the petition for an attachment in an action founded thereon need not be presented to a judge for an allowance of the amount in value of property to be attached, as prescribed in section 3177 of the Revision.

3.

DAMAGES FOR WRONGFUL SUING OUT: PLEADING. In an action for damages for the wrongful suing out of an attachment, the pleading must negative the truth of the matters alleged in the petition for the attachment.

Appeal from Washington District Court.

WEDNESDAY, OCTOBER 28.

THE petition claims, that defendant sold to plaintiff a certain lot of sheep, representing that they were sound

Swan v. Smith.

and healthy, and averring that they were diseased; wherefore, etc. Defendants pleaded that the court ought not to have or maintain jurisdiction, because they were at, etc., residents of the State of Ohio, and not of this State. To this plea there was a demurrer, which was sustained.

Plaintiffs procured an attachment, and defendants sought to recover, in a cross action, damages for the wrongful suing out of said writ. To this part of the answer there was a demurrer, which was also sustained. Judgment for plaintiffs, and defendants appeal.

Lewis & Bennett for the appellants.

McJunkin & Henderson for the appellees.

ION: venue:

WRIGHT, J.-Several questions were raised in the court below, but the defendants, by their exceptions, 1. JURISDIC- saved but two of them. It is true, they exnon-resident. cepted to the overruling of their motion to dismiss for want of jurisdiction, but as no such motion is found in the record, the most favorable view to them is, that such ruling relates to the action of the court in sustaining the demurrer to their plea on this subject. Turning, then, to the two questions, we hold, first, that the fact that a party is a resident of another State is not of itself sufficient to defeat the jurisdiction of our courts. The record shows that one of said defendants was found in Washington county, and there served. Under the language of section 2800 of the Revision, there can be no question but that the action was therefore properly brought. There may be other reasons why the action of the court in this respect is not erroneous, but this alone is sufficient. Second, as to the cross demand. It was not necessary that the petition for the attachment should have been presented to

2. ATTACHMENT: demands ex-contractu.