Beckwith v. Talbot

We find, upon examining the record of the exception taken to the ruling of the court below, that the amendment was allowed upon minutes of the trial kept by the judge of that court, and, therefore, it is not true, as alleged by counsel, that there was no memorandum in writ*605ing upon which the amendment could be made. Mr. Stone, who took minutes of the testimony upon the trial below, testifies that by a slip of the pen he recorded the testimony as it is given in the original bill of exceptions, but that the witness did in fact testify as stated in the amendment, and his testimony was supported by the notes of the judge who sat at the trial. It is very clear that a mistake was made in preparing the bill of exceptions, and, as the evidence of the fact was still in existence, we think the court might well allow the amendment to be made. Doane v. Glenn, 1 Col. 454. As to the notice of the application for leave to amend, no objection to the sufficiency of it was made in the court below, and therefore none should be heard in this court.

The motion to strike from the files will be denied.

Motion denied.