Wilkes v. Folsom

The first headnote, relating to the second special ground of the motion for new trial, alone requires elaboration. During the trial, and before any evidence was admitted, the plaintiff offered an amendment, which was duly allowed and ordered filed, as follows: “That the deed made by C. S. Wilkes to the said Margaret Wilkes, which bears date of February 19, 1914, referred to in the seventh paragraph of the petition, was not made by C. S. Wilkes for a valuable consideration, but was made by C. S. Wilkes for the purpose of conveying the said land to Mrs. Margaret Wilkes, for the sole purpose of allowing her to borrow a sum of money at the time on said deed, and the said Mrs. Margaret Wilkes did not use said deed for said purpose at said time; and said deed was made by the said C. S. Wilkes when the said Wilkes was only eighteen years of age, and was a minor, and was therefore not a valid deed.” Counsel for defendants objected to the amendment, upon the ground that it set up a new cause of action. Upon the allowance of the amendment the defendants pleaded surprise, announcing in open court that they were not in position to meet the amendment so offered and allowed. The court thereupon announced from the bench, “ That seems to come up to the rule,” and, addressing the plaintiff’s counsel, “They are entitled to a continuance.” Thereupon plaintiff’s counsel said, “ We will take an order striking the amendment in the case just offered, for the purpose of going into the trial of the case.” The case proceeded to trial, and C. S. Wilkes, a witness for the plaintiff, testified as follows: “ At the time I made the deed to my mother I was a minor; there was no consideration for same; it was made because I wanted to borrow some money, and I made the deed to my mother for her to borrow the money, and she never did use the deed to borrow the money, and I never got the money.” Counsel for defendants thereupon moved the court to rule out said evidence, upon the ground that it was irrelevant, immaterial, and prejudicial to the rights of defendants, and upon the further ground that there were no pleadings to authorize the same, the plaintiff having withdrawn the amendment which sought to attack the deed on the grounds that it was without consideration and that the grantor was a minor at the time of making the 'deed. The court held the ruling in reserve at'the time; but at *168the conclusion of the plaintiff’s evidence the defendants’ counsel renewed their objection as made to the evidence; whereupon the court ruled as follows: “I don’t understand that that operates to estop them upon this particular issue. I will have to overrule the motion.” This ruling is assigned as "error. We think the objection was well taken, and that the court erred in refusing to rule out the evidence. The court had already expressed his opinion that this was a material feature of the case, by his ruling that the amendment set up a new cause of action entitling the defendants to a continuance.' The amendment was withdrawn expressly upon the ground that the plaintiff desired to avoid a continuance. Manifestly, if the amendment was of such materiality and importance as to require a continuance of the ease on motion of the defendants, it was prejudicial to the latter to permit proof of the facts stated in the amendment, without pleading. The plaintiff cannot attain the end sought by the amendment by dispensing with the pleading and proceeding with the evidence, for the sufficient reason that there must be appropriate pleading to permit the proof. This ruling was prejudicial to the defendants, and the court should have granted a new trial.

Judgment reversed.