Topia Mining Co. v. Warfield

Plaintiff appeals from an order which denies in part a motion to amend the complaint. Certain unimportant amendments were not objected to and were allowed.

The action is in effect for an accounting as to defendant’s management of certain mining properties in Mexico from August, 1905, to the spring of 1908. It is also sought to set aside certain releases held by defendant. Upon its face the amendment appears to do no more than to extend the period of accounting backward to April 1, 1904, so as to require defendant to account for transactions covering the period from April 1, 1904, to August, 1905, in addition to those covering the period already stated in the complaint. Some evidence appears to have already been taken with reference to this extended period. The defendant submitted no affidavits in opposition to. the motion, resting his opposition on supposed deficiencies in the plaintiff’s papers. His principal objections are that plaintiff has been guilty of laches, and that the affidavit excusing the non-inclusion of the period stated in the original complaint is made only by plaintiff’s attorney.

We do not consider that plaintiff can justly be charged with laches. The case has been at issue for some time, but we cannot say that either party has been at fault in that regard. The defendant has not been taken by surprise or otherwise prejudiced by the delay in applying for the formal amendment. As to the affidavit, the rule is not invariable that the excuse for not including allegations in an original pleading must be made by a party, and not by his attorney. What the court *141wants is the truth, and to that end requires the affidavit to be made by that affiant who knows the facts. Usually, although not always, that person is the party to the action and not his attorney. There are cases, however, in which it is apparent that the attorney best knows the facts, and when that is so his affidavit is to be preferred. We think that this is such a case. At all events the plaintiff being a corporation cannot itself make an affidavit, and any affidavit in its behalf must be made by some officer or other agent. It does not appear that any other agent is so well acquainted as the attorney with the reasons for not including the year from April, 1904, to August, 1905, in the original complaint. The matters covered by the amendment seem to be germane to the matters already included in the complaint and we think that justice requires that the entire controversy between the parties should be disposed of in a single action.

The order, so far as appealed from, is reversed, with ten dollars costs and disbursements, and the motion granted.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted.