Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1902-07-07
Plaintiff Wanted to Amend the
Complaint in the Case,
DEFENSE RESISTED II.
Addresses Go ON While His Honor
Takes the Matter Undo
Advisemcnt.

The arguments In the injunction sui
Of Stewart T. Tanner VS. A. c, Nelson
state superintendent Of schools, were
commenced this morning before Judge
Hall Before the arguments were
commenced, Attorney c, o. White
more, of counsel for plaintiff, asked
leave TO amend the complaint and sub
mltted two amendments as follows:
"i--a--That plaintiff has and at all
times mentioned herein has had the
necessary school books which were
heretofore adopted and used in said
schools, as provided by law, and which
would be required for the use OF said
children during the next ensuing
school year
ga. That said convention failed
and neglected 10 flx the amount Of any
bond or bonds IN any reasonable sum,
or In any sum at all, to be given by
said publlghers. on by any OF them, for
the faithful performance Of any con-
tracts that might be entered into with
the state superintendent OF public in.
structlon by said publishers or by any
Of them. as provided by law, or at
ALL"
The first amendment, being merely
introduced for the purpose Of making
the record complete was allowed to 20
In by the court The other one raised
a new ground Of action and was argued
at some length by counsel on both
sides, and the court did not
render a decision on that point but al
lowed the attorneys 90 proceed with
their arguments on the issue already
involved.
In arguing in support of the last
amendment. Mr. Whittemore oontended
that no bonds We're fixed by the con-
yentlon, as was shown by the minutes
introduced In evidence, ana that the
statutes provided that the convention
should fix the bonds, hence that was
q vital objection TO the proceedings OF
the convention, and he thought the
plaintiff had perfect right TO take adj
vantage of such action.
Senator Brown protested against al
lowing the amendment % 80 IA. He
said that they came In after the tes-
tim0ny was all In and without Sec
ond's notice to the defense asked TO
amend their complaint and bring up
new issues. lie thought the de-
Tense was entitled to FIVE days notice,
according 10 the rules OF the court,
before arguments on motion to amend
the complaint were heard,
Attorney Richards argued that the
action was no surprise to defendants
attorneys because II was a point
brought out In their own testimony In
the minutes Of the convention which
were identified and introduced by them,
and they certainly could have known
about It II they hail read the min
utes. The minutes show that
the matter OF fixing bonds
was left exclusively 70 a committee
with power to act, hence he contended
that the bonds were not fixed by the
convention, and the plaintiff has a
tight to take advantage Of that irregu-
iarity In the proceedings Of the con-
vention.
Senator Brown said that the minutes
were a public record and wanted to
know why plaintiffs attorneys had not
examined them and then alleges that
matter as cause OF action. He said
there was no occasion for the amend
ment. but that he would prefer the
amendment rather than delay the case,
rs II Involves a matter Of public neces-
sity and should not be delayed.
Judge Hall stated that he would not
pass upon the amendment at the pres
mt time, and instructed the attorneys
10 proceed with their arguments on the
issues.
Atty. Cherrington opened the argu-
ments for plaintiff. He confined his
arguments to the standing Of the plain
TIT in the court as 10 his right to
bring the action, and also as to his
damages. lie said that the action could
not be brought by the state because
,itizens In cities Of the first and second
,lass were not affected by the change
Any party outside Of such cities who
has children Of the proper school age
Is the one damaged and hence is the
proper party to bring an action. There
ore he argued that plaintiff was a pro-
Der person to bring the action. He
,ited numerous authorities In support
II his contention,
At this afternoons sessisn Mr..
1herrington concluded his argument,
lfter which the attorneys for the de-
ense withdrew their objections to the
amendment offered by plaintiff aud
which the court had under consIdera-
lon, and the same was allowed to 20
n.
Attorney Whittemore then argued in
ayor OF plaintiff. He will be followed
~ Senator Brown aud Judge Hender-
ION for defendant and Attorney RichS
ride will cIoea for tho nlaintiN