Genger v. Westphal

Very little, it seems, need be said in disposing of this case. The conclusion necessarily follows from the statement that the judgment should be affirmed.

The record amply shows that no attempt was made, on the trial in justice’s court, to prove the contract relied upon in the complaint. The allegations in that regard were the ones put in issue by the answer and presumably the only ones respondent expected to meet. While it is claimed by appellant that *428•evidence establishing a contract liability in accordance with the amendment requested at tbe close of the trial, was received without objection, the record seems to indicate quite •clearly to the contrary, as respondent’s counsel contends. Moreover, it is by no means clear that the evidence received warranted the judgment in any event.

It was eminently proper for the justice to deny, as he did, the application for leave to amend under the circumstances. Just as clearly it was an abuse of authority for him after-wards, and after the case had been continued merely to enable him to pass upon the question of the rights of the parties under the pleadings and the evidence, to render judgment upon a claim not within the issues made by such pleadings. The circuit court was clearly right in correcting that mistake by reversing the justice’s judgment.

By the Court. — The judgment is affirmed.