De Prevost v. Young

Mr. Justice Van Oesubl

delivered the opinion of the Court:

This is an action for deceit. At the trial, appellant, Teresa O. De Prevost, plaintiff below, at the conclusion of the talcing of the testimony, apprehending an unfavorable verdict, asked leave to withdraw a juror, to have the jury discharged, and to be permitted to amend her declaration. The request was granted. An amended declaration was filed, which defendant, Robert A. Young, moved to strike from the files, on the ground, among other things, that “the amended declaration is simply a verbose and frivolous restatement of the cause of action attempted to be set up by the declaration without the addition of any material averments.”

A comparison of the original and amended declarations fully sustains the holding of the court below that “the amended declaration states no different cause of action than that set forth in the original declaration; that is to say, it states no different cause of action that might be permitted in an amended declaration growing out of the same set of facts alleged in the original declaration and admitted to be established, by the plaintiff’s testimony thereunder.” Indeed, plaintiff, in her brief, says of the amended declaration that “the narr. was amplified, but the cause of action as stated was in substance the same” as in the original declaration. ■ An amended declaration which contains no additional material averments which, if true, w'ould, on the issue, present a different state of facts for the consideration of the jury than that adduced under the original declaration, amounts to no amendment at all, and does not entitle plaintiff to a second trial. “The request to withdraw a juror and to dis*83charge the jury because a declaration is found to be imperfect, and the grant of such request upon the condition that the declaration will accordingly be amended, coupled with a subsequent refusal without just cause to make the amendment and the purpose necessarily incident thereto to g'O to another trial by jury without amendment, might justly be regarded as a juggling with the administration of justice and a fraud upon the rights of other parties, for which a dismissal would be eminently proper, if such course were not pursued, as we believe it was in this case, in good faith. But whether pursued in good faith or in bad faith, it is a practice that cannot be allowed.” Jackson v. Emmons, 13 App. D. C. 269. As nothing new was presented in the amended declaration, the court was right, on the authority of the case above cited, in denying another trial.

As this disposes of the appeal, it is unnecessary to consider the other questions presented.

The judgment is affirmed, with costs. Affirmed.