The opinion of the court was delivered, January 4th 1869, by
Thompson, C. J.Rules are indispensable aids in ,the routine business of courts, and to this only they properly apply. Being subject to the authority which gives them existence, they are administered in subordination to the rights and equities of suitors. In other words, they are not to be instrumentalities to defeat those rights; but their provisions are always adhered to, when in any neglect of them, rights have accrued which it would be inequitable or unjust to disturb. When, however, a failure to *432comply with their requirements in any given case, is the result of mistake, haste or surprise, and positive injury is likely to ensue to a party, courts will not adhere to them simply on account of the rules, at the expense of justice and the just rights of parties. Hence amendments to fulfil requirements, are generally allowed when offered without unreasonable delay, and before much expense and costs have accrued.
In the case before us, the appellee the libellant, issued a subpoena in divorce to the respondent, returnable on the 1st Monday, the 2d day of September 1867, to which she appeared by counsel, and filed her answer on the 8th of October following. In her answer the respondent omitted to claim an issue to try the facts denied therein, as she ought to have done, if she desired it, under the 80th rule of the Court of Common Pleas; but in the short period of eleven days thereafter she did apply to the court for leave to amend her answer in this respect, and set forth in her affidavit, haste and surprise, in preparing her answer, owing to the rapid movements of the libellant in preparing to take testimony before her answer was in. She might well have expected to be called on to answer under rule 79; for in this way only could the libellant know, whether he was to prepare to take testimony for the court, or to produce his witnesses before a jury.
The answer would, according to the rule of court, disclose whether an issue would be claimed or not.
But without ascertaining this, the libellant applied for, and obtained the appointment of a commissioner, before whom to take testimony, and under a supposed necessity for an immediate answer to the complainant’s libel, the defendant declares it was prepared before she was ready. In substance, that it was imperfect, and she prayed leave to amend, so as to claim an issue and trial by jury, which she also affirmed her belief to be necessary to the trial of her case properly. The amendment, had it been granted; would not have delayed the final result, and as but little testimony was taken on the part of the libellant before the amendment was proposed, we think it should have been allowed.
. What occurred after the rejection of the offer, cannot be allowed to operate in the libellant’s favor on this point of practice, for it was on his objection the amendment was refused; nor against her, for she proceeded with promptitude to propose the amendment. We are of opinion the amendment should have been allowed and an issue granted, and because this was not done, we feel bound to revérse the decree and send the case back, to be proceeded on in accordance with the views herein expressed. The disputed facts will then be settled by trial by jury.
And now, January 4th 1869, the decree of the Common Pleas in this case is reversed and set aside, at the costs of the appellee, and a procedendo is awarded; *433and furthermore, it is ordered, that the libellant pay to the respondent, within thirty days from this day, the sum of $100, towards counsel fees and printing paper-books in this appeal, and that the order for the support of the respondent, during the continuance of proceedings in the case, made in the court below, be continued, until otherwise ordered by said court.