Noble v. Terrell
Noble v. Terrell
Opinion of the Court
delivered the opinion of the court.
Under the statute there was no error in permitting the petition to be amended; but if it was not allowable, under the statute, to join with the petition to enforce the lien for a certain sum, a count in assumpsit for a certain other sum for which no lien was claimed, for lumber alleged to have been furnished under the same contract between the parties, the error of doing so is cured by the statute of jeofails, which provides, among other things, that no judgment shall be stayed or reversed, after verdict, for any mis-pleading or insufficient pleading, or for any mistake or misconception as to the form of action. As we construe the record, no objection was made to the form of the petition or complaint before trial, and none can be made on such account after verdict. The statute intends that the pleadings shall be settled by appropriate method before trial, and if it is not done, neither party, after verdict, shall avail of a defect in the pleadings, such as a misjoinder of causes of action, or a mistake in the form of action.
On the issues joined, there was no error in giving and refusing instructions, and on the showing made, there was no error in refusing to grant a continuance, or new trial. Affirmed.
Reference
- Full Case Name
- W. H. Noble v. Terrell & Bond
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- 1. Pleading- and PRACTICE. Petition to enforce lumber lien. Amendment by inserting count in assumpsit. Under $ 1581, Code of 1880, which provides that “The court shall have full power and authority to allow all amendments to be made in any pleading or proceeding at any time before verdict, so as to bring the merits of the controversy between the parties fairly to trial, and may allow all errors in the form of the action to be corrected,” a petition to enforce the statutory lien for lumber furnished may be amended at the trial by having inserted therein a count in assumpsit for a part of the demand contained in the petition, but for which no lien is claimed, the entire demand being for lumber furnished under one contract. 2. Same. Petition to enforce l-ien. Failure to object to form of cured by verdict. And where, in such case, no objection was made to the form of the petition or complaint before verdict, none can be afterward made, because of $ 1727 of the Code of 1880, which provides that, “ No judgment shall be stayed or reversed, after verdict, from any mispleading or any insufficient pleading; or for any mistake or misconception of the form of the action; or for any defect of form in the declaration or pleading.”