W. O. Johnson v. Hardware Mutual Casualty

[1, 2] When the case was reversed and remanded by this Court, Johnson v. Hardware Mut. Casualty Co., 108 Vt. 269, 288, 187 Atl. 788, the rescript contained the following provision: "* * * with leave to apply for an amendment if plaintiff be so advised." This being so, it did not stand in the county court like the ordinary case remanded by us. Strictly taken the first step to be taken by the plaintiff in that court, was to apply for and obtain leave to amend the complaint; and until that was done, the case was not for trial. The plaintiff did not take this view of it. He considered that the case was in the county court and subject to its rules. He treats it here as a case covered by county court rule 14, par. 3, which provides that, on continuance of a case, either party may amend his pleadings within one month from the rising of the court. But whatever irregularity or fault adhered in the course taken by court or counsel in that regard was cured by the subsequent proceedings. The record shows that the question of amendments was heard before a single superior Judge, who, upon consideration, allowed amendments to be made, and it was before the county court, which, upon consideration, allowed further amendments to be made. The defendant appeared and participated in both of these hearings. So we think that its rights have been sufficiently protected, and its exceptions to these allowances are overruled.