Haynes v. Rice

Citations

• 33 Tex. 167

Syllabus

<p>1. It is not absolutely necessary to obtain formal leave of court to amend a petition, unless the amendment Twill operate a continuance of the cause; in which latter case the leave must be obtained and spread upon the record.</p> <p>2. The court below having taken action on an amendment which did not operate a continuance, it will be presumed by this court that leave to file the amendment was duly obtained.</p> <p>3. With regard to amendments, the discretion of this court will only be exorcised to prevent surprise upon parties.</p> <p>4. The ends of justice are always best attained by having the pleadings to disclose, fully and accurately, the facts relied upon by each of the parties litigant.</p> <p>5. Plaintiff sued as on a note extant, of whieh he set forth a copy in his petition. Defendant appeared and pleaded to the original petition. Plaintiff recovered judgment; -but thereupon defendant made oath that since judgment he had discovered that the note exhibited m the petition was uot the note executed by him, but only a copy of it, and a new trial was granted and the cause continued. At the next term the plaintiff, without formal leave of court, and without further service on or notice to the defendant, amended his petition and alleged that the original note was lost; that the copy exhibited was a true copy of it, and that he was ready to indemnify defendant against liability on the original. Defendant took no notice of this amendment, and plaintiff .recovered judgment on the case made by it. Defendant prosecutes error, assigning that the amendment set up a new cause of action, and he was entitled to new service, etc. Held, that the amendment did not set up a new cause of action, hut only proposed to establish by different proof than the original note itself the same cause of action relied on'in the original petition; that the defendant, being already in eourfc, was not entitled to new service or further notice, but was hound to take cognizance of the amendmen