Alexander Chambers v. James S. Lane.
?8tition and summons. In copying the noto sued on, in the petition, plaintiff copied the word “ after” twice, by mistake; which mistake he was, on motion, allowed to rectify. Thereupon defendant moved for a continuance, which was refused; and a new trial, which was also relused. Held, that there was no error in refusing either motion.
ERROR to the circuit court of St. Louis county.
B. Mullanphy, counsel for plaintiff in error:
Plaintiff in error deems that the amendment, permitted to defendant in error below, was permitted against *290law. That, being permitted after the pleadings were made up, it took away from defendant below a good de-fence — took him by surprise — ought not to have been, permitted without a continuanct; and when such continuance, on such ground, was applied for, being applied for as soon as defendant below heard of the amendment, it ought to have been granted without hesitation.
Pet. and sum. In copying the;note tition, the pltf. copied the word mtstake^which mistake’he was, onmotion, moved for a continuance, which was rciused; and a new tnai} which was also refused, Held, that there Mfetnir either motion?
J. Spalding, counsel for defendant in error:
1. The demurrers were rightly sustained. The petition was on a note, and the two first pleas asserted that it was not the defendant’s deed. A deed means a sealed instrument. These pleas were no answers to the action, and the issue on them would have been totally immaterial .
2. All the other objections relate to the amendment and the refusal of the court to grant a continuance on account ol it.
No amendment was necessary in this case; and, secondly, if one were necessary, the court did right to permit it, and would have done right in permitting it even on the trial, and that too, without a continuance — see case of Atwood v. Gillespie, 4 Mo. Rep. 423, where these very points are settled in case of a note, and in which the word “pay” was omitted in the copy in the petition, and an amendment permitted on the trial without a right to continuance — New Revised Code, 467.
Tompkins, Judge,
delivered the opinion of the court.
Lane sued Chambers in the circuit court by petition in debt under the statute, and had judgment. To reverse that judgment, this writ of error is sued out.
By the act under which this suit was commenced, the plaintiff is required to insert m the petition a copy of the instrument sued upon. The instiument sued on in case, reads thus: “One day offer date 1 promise,” &c. In the copy inserted in the petition, the word uaf-was twice copied, and that copy read thus: “One a.1ier after date I promise,” &c. After the pleadings m the cause were made up, and before trial, the plaintiff was allowed, on motion, to amend the copy. The de-fencjant movec[ f01- a continuance of the cause on account , , . . , , . oi the amendment allowed, and his motion was ovorru-lod, and judgment being rendered against him, he moved ^01' a new tr'a4and drat moti°a was overruled, and these decisions of the court are assigned for error. The *291amendment permitted by the court could not possibly have produced any surprise. The legal effect of the in-strumenf was precisely the same as before the copy was amended by striking out one of the words “offer,” which had been twice written by mistake. The circuit court, then, in my opinion, committed no error, either in refusing the defendant a continuance or in refusing him a new trial; and such being the opinion of the rest of the court, the judgment of the circuit court is affirmed.