ON MOTION FOR REHEARING.
ED. MECHEM, District Judge.In a motion for rehearing filed, appellant contends that the court was in error in the original opinion in refusing to consider the action of the court in permitting the appellee to amend his answer at the close of the case. The refusal to consider was based upon the fact that appellant had failed to incorporate the original answer into the transcript. Appellant admits that it failed to incorporate such original answer into the transcript, but insists that this was impossible, because the court permitted the amendment to be made by interlineation. Consequently, the only pleading appearing in the files of the court below was the original answer, as amended.
[5] Assuming, however, that the point is prop- • erly here for consideration, there is no merit in the argument advanced by appellant that there was any error in permitting the amendment. In considering the propriety of the action of the court, we would be limited to the objection interposed to the allowance of the amendment in the court below, and this was that there was nothing in the evidence adduced to justify any such amendment. It is argueeLhere that by the allowance of the amendment defendant was permitted to change substantially his defence. This objection was not urged in the court below, and, of course, will not be considered.
[6] Reverting to the objection there interposed, that the evidence did not justify the amendment, it is sufficient to say that this has been disposed of by what was said in the original opinion. We there held that the evidence was sufficiently, definite as to the extension, and that there was sufficient evidence on this point to require its submission to the jury. This being true, the court did not abuse its discretion in permitting the trial amendment.
“It is generally held, to be within the discretion of the court to allow or refuse amendments after the evidence is heard or the arguments of counsel closed.” 31 Cyc. 401.
For the reasons stated, the motion for rehearing will be denied; and it is so ordered.
ROBERTS, O. J., and RAYNOLDS, J., concur.