Ellen v. Lewison
Synopsis
Trial—Amendment of Complaint — Time to Answer — Discretion.— Where the complaint is amended upon the trial, by the addition of a few lines, to obviate an objection to the admission of evidence upon a point which the pleader had evidently intended to make by the original complaint, it is not an abuse of discretion to require the defendant to answer the amendment immediately, if the answer could he easily made at once without inconvenience to the defendant.
Setting aside Gift — Fraud — Undue Influence — Mental Incompetency — Pleading — Amendment — Continuance — Surprise. — Where it is clear, from the inspection of the complaint in an action to set aside a gift of a father to his daughter, that the pleader intended to charge not only that the giver was mentally incompetent to make the gift, but also that he was induced to make it by the fraudulent acts and undue influence of his daughter, it is not error to refuse a continuance on the ground of surprise at an amendment allowed by the court at the trial, out of abundant caution, so as to charge more specifically that the gift was so induced.
Id. — Evidence — Rebuttal of — False Representation — Accusation of Theft. — Evidence that the donor was in the habit of keeping large sums of money in his house, and that a witness had helped him to carry there a large sum of money, is not admissible in rebuttal of evidence that the donee had represented to her father that her sister’s husband had come to her father’s house after he was stricken with paralysis and had stolen a large sum of money, if it does not appear at what definite time it would be shown that the money was kept in or carried to the house.
Id.—Weight of Money Carried away.—Where the sister’s husband, accused of theft, has testified in behalf of the plaintiff that he had taken away from the house of the donor of the gift in controversy a small sum of money in a hand-satchel, and certain hooks and papers in a large satchel, by the order of the donor, after he had been stricken with paralysis, and that he had accounted for all funds and credits so received, and another witness has stated in behalf of the defendants, without objection, that he saw him carrying away two large valises about eighteen inches in length and a foot in diameter, and that they appeared to be very heavy, it is not prejudicial error to refuse to allow the witness to state that he was weighed down by two large satchels which appeared to weigh seventy-five pounds each.
Id. —Belief of Donor as to Theft — Immaterial Evidence. —Evidence as to the belief of the donor that a theft had been committed by the husband of another daughter, as represented by the daughter who received the gift, and that he was angry with the person accused of the theft, and had accused him thereof in the presence of others, is immaterial, in the absence of evidence to show that his belief and anger had proceeded from some cause independent of the representations of the daughter who obtained the gift.
The Court. This action was brought by the plaintiff against the defendants as the administrators of the estate of Emma J. Eegli, deceased. The plaintiff obtained a verdict and judgment against the defendants in their representative capacity as prayed for, and from that judgment this appeal is taken, on the judgment roll and a bill of exceptions.
The facts set up in the complaint were, in brief, that Elle Ellen, an incompetent person, who sues by his guardian, had been induced by his daughter, Mrs. Eegli, [257]to make her a gift of $15,850, which gift, “by reason of the premises, is utterly void, and the conversion of the said money was wrongful and without consideration.”
The grounds which the plaintiff claims that he- relied on to sustain his contention are, that the gift was made by an incompetent person while being unduly influenced.
Upon the trial, when evidence was sought to be- introcuced as to the .fraud and undue influence claimed to have been exercised by Mrs. Begli in her- life-time,, and to have induced the gift, the defendants- objected that such evidence was inadmissible under the pleadings, that no such issue was tendered by the complaint,, and that the only issue tendered was “ that of mental competency to make the alleged gift.” The court agreed with the defendants, and allowed the plaintiff at once to amend the complaint, which was done in a few lines.
Counsel for defendants insisted on being allowed ten days in which to answer, but did not ask for any less number of days. The court ruled them to an immediate answer, which was made at once, and briefly, though sufficiently; and as appears to us, this was easily done, and without any inconvenience. Whereupon they moved for a continuance on an affidavit alleging surprise, and that they must now adopt a different line of defense by reason of the amendment, and stated that they expected to be able to obtain proof upon “ all of said new issues now tendered which is not now at their command,” and that they needed further time, etc. The court refused to grant the continuance, and the trial proceeded, against the objection of the defendants. It is claimed that the court below was guilty of an abuse of discretion in not allowing time to file the answer to the amendment, and in refusing to grant a continuance.
As to the first matter, it is plain that the amendment was easily made and filed as requested, and there certainly was no abuse of discretion in requiring this to be done.
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