In this cause there was, on August 9th, filed an application for leave to file an amended return by the Warden of the Penitentiary. This was through the Attorney-General. By order entered of record on August 14, 1923, the prayer of the foregoing and mentioned application was granted and leave given to file such amended return. To this action of the court in granting such leave and making the order therefor, I dissented and took leave to file an opinion giving the reasons for such dissent. In pursuance of such leave to file opinion I am now assigning my reasons for my dissent.
Further facts of record should be stated. Petitioner, on July 23, 1923, filed his petition and application for a writ ofhabeas corpus. July 26, 1923, a date for a hearing of the cause was fixed, and July 31st was the date fixed for such hearing. On July 31st said cause was heard, argued and submitted for opinion. When the order *Page 679 granting leave to file an amended return and thus change the issues theretofore made there were in fact two prepared opinions in the case. One opinion remanding the prisoner, and the other dissenting from such opinion.
I dissent because:
1. No notice to petitioner or his counsel was given of such application for leave to file an amended return.
2. The amended return, tendered with the application for leave to file, charges the issues in the case, and this after the issues had been made and the cause submitted.
3. No order allowing the change of issues can or should be made after a cause has been heard and submitted.
4. The order of submission (upon full issues theretofore made by the pleadings) stands now in full force and until such order of submission is set aside, no change in the issues in the case can be made.
5. If it be said that the order allowing a change of the issues amounts to a setting aside of the submission, then in such case the cause stands here for a hearing and a new submission, and stands as if no hearing and submission had ever been heretofore had.
6. It is a dangerous practice to allow changes in issues after a submission of a cause, if in fact it can be done at all. In our judgment when once the issues are closed and the cause submitted, no change of the pleadings and issues can be made. If they can, then every time a lawyer discovers some oversight (after submission of his cause) he can ask to change his pleadings to cure this oversight. Of course we are speaking of original proceedings here.
I shall not elaborate upon the foregoing reasons. They speak for themselves. I therefore dissent to the order granting leave to file the amended return. *Page 680