#### Moll vs. Semler and another.

Practice: Amendment. (1) *By whom amendment of pleading may he allowed.*(2) *Whether always*“ *on terms."*(3,4) *When order allowing amendment will be reversed.*

1. A court commissioner has the same power as a judge at chambers to allow an amendment to a pleading. Laws of 1862, ch. 358.

2. The power to grant an amendment “upon such terms as may he proper,” does not require the imposition of terms in all cases.

3. This court will not reverse an order granting leave to amend a pleading, unless there has been an abuse of discretion.

. 4. Ten days after defendants’ right to amend as of course had expired they were permitted by a court commissioner to amend their answer (without any terms), upon filing an affidavit of merits, a copy of the proposed amendment, and an affidavit of one of the two defendants stating that the facts alleged in the amendment were not known to him when the original answer was filed, but only to his co-defendant in California, from whom he had to obtain them. The circuit court having refusod to vacate the court commissioner’s order, *Beld,*that there was no abuse of discretion.

*590APPEAL from tbe Circuit Court for *Washington*County.

Tbe plaintiff appealed from an order of tbe court denying bis motion to set aside an order of a court commissioner allowing defendants to amend tbeir answer. Tbe case is sufficiently stated in tbe opinion.

*Frisby & Weil,*for appellant,

argued that tbe court commissioner cannot allow amendments to pleadings, nor any orders except those which are made *without notice*(E. S., cb. 140, sec. 29); that such an officer cannot exercise tbe *discretionary*powers of tbe “court;” and that our statutes distinguish everywhere between acts which may be done by tbe “ court,” “tbe court ora judge thereof,” or “tbe court, or judge, or court commissioner ” (E. S., cb. 125, sec. 37; same chapter, sec. 42; cb. 129, sec. 5.) On tbe general subject of tbe power of inferior judicial officers, they cited *Rogers v. McFlhone,*20 How. Pr. E.-, 441; *Merritt v. Slocum, 8*id., 309; *Gardner v. Comm’r, etc.,*10 id., 181. They also contended that tbe amendment could only be allowed “upon terms” (E. S., cb. 125, sec. 37); and that tbe defendants bad not shown themselves entitled to tbe favor of tbe court, and it was an abuse of discretion to permit them to amend at all, but especially without terms.

*Butler & Winkler,*for respondents.

LyoN, J.

A court commissioner for tbe county in which the action is pending, made an order upon tbe plaintiff, to show cause before such commissioner why tbe defendants should not have leave to amend tbeir answer, ■ theretofore served in tbe action; and on tbe return day of tbe order, to wit, Eebruary 8, 1871, tbe commissioner made an order granting such leave, and imposed no terms upon the defendants as a condition thereof. Tbe original answer contains a counterclaim, and tbe reply thereto was served January 9, 1871. An affidavit of merits — a copy of an affidavit of tbe defendant *Semler,*giving, as tbe reason why tbe original answer did not contain a state*591ment of all the facts stated in *the*proposed amended answer, tbat bis co-defendant was in California, and tbat sneb facts were not within bis (affiant’s) knowledge and be bad to obtain tbem from bis co-defendant, wbo alone was cognizant thereof— and a copy of tbe proposed amended answer, were served with tbe order to sbow canse.

From tbe order of tbe commissioner giving tbe defendants leave to amend tbeir answer, tbe plaintiff appealed to tbe circuit court, or ratber made a motion to tbe court to set aside and vacate sucb order. The court denied the motion, and the plaintiff appeals from tbe order of tbe circuit court denying sucb motion and refusing to set aside and vacate tbe order made by tbe commissioner.

We are of tbe opinion tbat tbe order of tbe circuit court should be affirmed.

t Up to tbe 29tb of January, or until within ten days of tbe time when tbe order was made giving tbem leave to amend tbeir answer, tbe defendants bad an undoubted right to amend it, as of course and without costs. R. S., ch. 125, sec. 86. They might have amended it under tbe statute in tbe same particulars in which it has been amended pursuant to tbe order of tbe commissioner. There is no pretense tbat tbe plaintiff has been subjected to any delay by reason of tbe amendment. And under tbe circumstances we think it a very proper exercise of discretion to permit sucb amendment to be made.

II. There can be no doubt tbat tbe commissioner bad power to make tbe order granting leave to amend tbe answer. No one will deny tbe power of a judge of tbe circuit court at chambers to make sucb an order, and tbe statute gives tbe commissioner equal powers. “He shall have and may exercise within bis county tbe powers and authority of a circuit judge at chambers, in any civil action in tbe circuit court, except as otherwise provided by law.” We know of no provision of law which restricts tbe power of tbe commissioner to allow amendments to pleadings, or which confers upon the judge at *592chambers greater power in that respect than is conferred upon the commissioner. Laws of 1862, chap. 858.

III. The amendment was allowed without imposing any terms upon the defendants as a condition thereof. This is purely a matter of discretion in the officer or court making the order. When the statute confers the power to grant the amendment “upon such terms as maybe proper,” it by no means makes it obligatory upon the court or officer granting the same to impose terms in all cases, but gives the power to do so when, in the opinion of such court or officer, terms ought to be imposed.

In the present case, the commissioner, in the exercise of a sound discretion, imposed no terms upon the defendants; and we cannot review the correctness of his judgment.

IY. Were it not for the decision of this court in *Dole v. Northrop,*19 Wis., 249, I should greatly doubt whether this order is appealable at all. I have no disposition, however, to disturb the ruling in that case. But the rule is there recognized, that the court will not reverse an order granting leave to amend a pleading unless it was an abuse of discretion to grant such leave. This is doubtless the correct rule; and in the present case we are unable to find in the order of the commissioner or of the circuit court any such abuse of discretion as will authorize this court to set aside or reverse their proceedings in the premises.

The order appealed from must therefore be affirmed.

*By the Court.*— Order' affirmed/