BAMBERGER
v.
TERRY
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In this case, the Supreme Court upheld a trial court's decision to permit a plaintiff to amend his declaration during trial to cure a variance with the evidence, and to refuse the defendant's subsequent demand for a jury trial despite his earlier waiver. The Court held that trial courts have discretionary authority under statute to allow amendments to pleadings during trial in furtherance of justice, and that permitting such an amendment does not automatically vacate a prior waiver of jury trial when the amendment does not change the nature of the case or the real issue between the parties.
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Mr. Chief Justice Waite delivered the opinion of the court.
This record shows that on the 25th -of May, 1876, Bamberger, the defendant below, moved that the cause be entered on the jury docket of the court, “pursuant to the statute in such' case provided, and as of right he may demand.” After-wards lie stipulated in. writing that the cause be tried by the court. This was equivalent to a waiver of a jury. The stipulation was duly filed and entered of record. Afterwards the parties appeared and the case'was tried by the court. At the close of the testimony, Terry, the plaintiff below, asked and, against the objection of the defendant, obtained leave to amend iiis declaration so as to avoid a variance between the pleadings aúd the proof. The defendant then put in a general denial to the amended declaration and demanded a jury trial. This the court refused, but gave the defendant leave to introduce additional evidence, if he desired.
By sect. 954, Rev. Stat., the trial court may at any time permit either of the parties to amend' any defect in the process or pleadings upon such conditions as it shall in its discretion, or by its rules, prescribe. This clearly authorizes the allowance of amendments during the progress of a trial in furtherance of justice. When such an amendment is permitted the equrt must, in its discretion, determine whether any submission which has been made ought to be vacated. Here the court decided that it ought not, and in this we see nothing wrong. Neither the nature of the case nór the real issue between the parties, as it had been tried,- was changed by the amendment. All that had been done was, to present by the pleadings, fairly and on its merits,- the controversy as it had actually been tried.
Judgment affirmed.-
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H. F. Wilcox OIL & GAS Co. v. Skidmore, 72 F.2d 748 (8th Cir. 1934)…, Kansas & Texas Railway Co. v. Wulf, 226 U. S. 570, 575, 576, 33 S. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134. For the rule that pleadings may be amended to conform to the proof, within the discretion of the trial court, see: Bamberger v. Terry, 103 U. S. 40, 43, 44, 26 L. Ed. 317; Ford Motor Co. v. Chas. A. Myers Mfg. Co. (C. C. A. 6) 64 F.(2d) 942, 943; Walker Grain Co. et al. v. Southwestern Telegraph & Telephone Co. (C. C. A. 5) 10 F.(2d) 272, 275; Southern R. Co. v. Gadd (C. C. A. 6) 207 F. 277, 27…
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Ford Motor Co. v. Chas. A. Myers MFG. Co., 64 F.2d 942 (6th Cir. 1933)…ade was to he carried out by written orders. It is the established rule that the couft may permit an amendment to be filed to conform to the proofs during the eourse of trial. ’The Tremolo Patent, 23 Wall. 518, 527, 23 L. Ed. 97; Bamberger v. Terry, 103 U. S. 40, 43, 26 L. Ed. 317; Southern R. Co. v. Gadd, 207 F. 277, 279 (6 C. C. A.), affirmed 233 U. S. 572, 34 S. Ct. 696, 58 L. Ed. 1099. We think there was no abuse of discretion in permitting the amendment to be filed in this case. Again, it is conten…