In this action, to recover upon the common counts and a bill of particulars, the defendants filed a counterclaim. The court sustained a demurrer thereto and granted leave to amend. An amended counterclaim for the same cause of action as the former was thereupon filed. The plaintiff again demurred. Thereupon the attorneys for the defendants consented that the demurrer *Page 80 should be sustained without argument, and in pursuance of such consent the same was sustained. No further pleadings were attempted to be filed until at the time of the trial, about six months later. After the evidence was all in the defendants moved for leave to file a counterclaim differing from any theretofore presented. The motion was denied for the reason that it came too late. These three rulings are in the reasons of appeal assigned as error, and no other assignments are made.
The defendants waived their right to except to the first ruling complained of when they subsequently volunteered to file an amended counterclaim for the same subject-matter as the former. Goodrich v. Stanton, 71 Conn. 418,425, 42 A. 74; Botsford v. Wallace, 72 Conn. 195, 202,44 A. 10; Boland v. O'Neil, 72 Conn. 217, 220,44 A. 15; Goodrich v. Alfred, 72 Conn. 257, 260, 43 A. 1041;Mitchell v. Smith, 74 Conn. 125, 128, 49 A. 909; Burke v. Wright, 75 Conn. 641, 643, 55 A. 14.
The second ruling was made with the defendants' express consent, which was given without reservation or qualification. A judgment or ruling so rendered or made cannot be regarded as adverse; neither can the consenting party be regarded as aggrieved thereby. General Statutes, §§ 788, 802; Goodrich v. Alfred, 72 Conn. 257,43 A. 1041; Farrell v. Waterbury Horse R. Co., 60 Conn. 239,21 A. 675.
In denying the motion for leave to file the counterclaim, the court was acting in the exercise of the discretionary power vested in it. Goodale v. Rohan, 76 Conn. 680, 681,58 A. 4; Botsford v. Wallace, 69 Conn. 263, 272,37 A. 902. Error will not be imputed to such action unless a clear abuse is shown. State v. Willis, 71 Conn. 293, 313,41 A. 820; Goodale v. Rohan, 76 Conn. 680, 58 A. 4. There is nothing in the facts of this case to suggest an abuse.
There is no error.
In this opinion the other judges concurred.