Smart v. Valencia , 49 Nev. 411 ( 1926 )

I concur in the order of affirmance and substantially in the reasoning of the foregoing opinion, but wish briefly to state my views. It appears from the record that the case was tried in the lower court by both parties, upon the theory that the complaint alleged an indebtedness in the amount demanded, and the clerical error did not mislead the defendants in the least degree. Upon or after the argument of defendants' motion for a new trial, the clerical mistake now complained of was pointed out. The court denied the motion for a new trial, and, upon the showing made by the plaintiff, entered an order permitting the amendment of the complaint to cure the clerical error. That this may be done even after decision is clear. Elgan v. Frances-Mohawk Co.,34 Nev. 469, 125 P. 696.

The purpose of a pleading is to apprise the adverse party of the matter he must meet. Defendants having tried the case and suffered no injury from the clerical error, it would be rank injustice to reverse the judgment merely to permit an amendment which has already been made. Amendments to pleadings before judgment are uniformly allowed to conform to the proof, and, since the technical idea demanding this is that the pleading must support the judgment, there is no substantial reason why the amendment may not be made after judgment, as in this case. The reason of the law is the soul of the law, and when the reason ceases to exist the law itself should fall. There is ample authority holding that a pleading may be amended after judgment that it may support the judgment. The showing made in this court of the allowance of the amendment is unquestioned; hence may properly be considered by us. Earl v. Morrison, 39 Nev. 120,154 P. 75.

On the other points I fully concur.

[Pending on petition for rehearing.]