Hoogendorn v. Daniel

(after stating the facts as above).

The appellant contends that the court below erred in permitting the plaintiff to file the amended complaint. It is unnecessary to cite authorities to the proposition that, in order to promote justice, a court may, in its discretion, permit amendment at any time before or during trial, unless the amendment as violative of some positive rule of law, or is such as to surprise or prejudice the opposite party. It is contended that the effect of the amendment permitted in this case was to change the theory of the suit, and to surprise the appellant to his…