J. I. Case Threshing Machine Co. v. Eichinger

Citations

• 15 S.D. 530
• 91 N.W. 82
• 1902 S.D. LEXIS 55

Syllabus

<p>1. Under Comp. Laws, § 4938, providing the court may allow the amendment of a pleading by the addition of allegations, it was proper to allow such an amendment to a complaint where it stated no new cause of action, as evidenced by the fact that a recovery under the original complaint would have been a bar to a recovery under the complaint as amended.'</p> <p>2. Comp. Laws, § 4911, providing that, if the complaint be amended, a copy thereof must be' served on defendant, who must answer within 30 days, applies only to complaints amended after a demurrer to the same has been sustained, and has no application to an amendment made in the action by order of the court.</p> <p>3. Where a notice of motion for leave to amend a complaint was served 10 days before term, and the trial was had on the eighth day of the term, and it was not shown by defendants’ affidavit for a continuance that there were absent witnesses whose testimony could not be obtained, nor that defendants were surprised, though it appeared counsel were busy in the trial of cases, and had no time to prepare the required answer, a continuance was properly denied.</p> <p>4. Comp. Laws, § 5034, provides for the giving of notice of trial and filing of a note of issue, and that “there need be but one notice of trial and one note of issue from either party, and the action must remain on the calendar until disposed of, and when called may be brought to trial by the party giving the notice.” Held, that after the filing of an amended complaint it is not necessary to serve another notice of trial and note of issue.</p> <p>5. In claim and delivery by the seller of a threshing machine against the purchaser, on the latter’s failure to give notes and mortgage therefor as agreed, defendants set up an estoppel in that defendants had paid freight on the machine with knowledge of plaintiff’s agent, and with knowledge of such agent had taken possession of the machine, and expended money in repairing the 'same. Held, that a d