White v. Smith

Bell, Presiding Judge.

After the time allowed for answer has expired, the defendant cannot by amendment plead any new facts or defense of which notice was not given by his original plea or answer, unless he attaches to his amendment the affidavit required by Code § 81-1310 or unless in the discretion of the court “the circumstances of the case or substantial justice between the parties” require that the amendment be allowed without the affidavit. Code § 81-1310. In allowing the amendment without the affidavit, the trial court’s “discretion must be based on some facts justifying its exercise.”…