
    Bell v. Rowland.
    1. Bilí, op exceptions. A Bill of exceptions contradictory and ambiguous, may be disregarded, especially when it is unsupported by the justice’s return.
    2. Amendment no cause pok dismissing the action, when a party is taken by surprise by an amendment to a pleading, he may be entitled to a continuance; but an amendment is never sufficient ground for striking a cause of action from the files.
    
      Appeal from Davis District Court.
    
    
      Thursday, October 13.
    Trial before a justice, and proceedings taken by defendant to the District Court, by writ of error. The return of the justice to the writ, and to the different grounds of error set out in defendant’s affidavit, only shows that defendant filed his answer, that the account sued on was made on Sunday ; plaintiff denied and answered by striking out the dates of said account; and defendant moved to strike the cause of action from the files, which motion was overruled. The judgment of the justice was affirmed, and defendant appeals.
    
      Jones &¡ Hamilton, for the appellant.
    
      U. U. Trimble, for the appellee.
   Wright, C. J.

It is very evident that appellant seeks to reverse this judgment, upon the claimed ground that a portion of plaintiff’s account, and upon which he recovered, was made and contracted on Sunday. To this appellee well responds that the return of the justice nowhere shows this to be the case. There is what is called a bill of exceptions, signed by the justice, which tends in some degree to show that a part of the account was made on that day, but it is so contradictory and ambiguous in its language, that the court below could disregard it, and especially when there was nothing in the justice’s return to support it.

The plaintiff had a right to amend his account or cause of action, or at least the justice did not abuse the discretion given to him, in permitting the amendment. If defendant was taken by surprise by the amendment, the parties, if satisfied of that fact, should have continued the cause. In no event, however, would the amendment have the effect of entitling defendant to have the cause of action struck from the files. He might be entitled to a more specific statement of the account, as to dates, if he had asked it.

Judgment affirmed.  