Thomas v. Hawkins

Dissenting Opinion.

Gavin, J.

The opinion of the majority, if I correctly understand it, holds that after demurrer sustained to a complaint, it is discretionary with the court to refuse to permit the filing of an amended complaint which pleads the same facts, causing damage, as were set forth in the original complaint, recovery being sought in tort instead of in contract. With this conclusion I am unable to agree.

The statute, sections 397-399, R. S. 1894 (sections 394-396, R. S. 1881), gives the court a discretion in allowing amendments made after answer, amendments as to parties, to conform…