
    Benson et al. v. Marietta Fertilizer Company.
    April 17, 1913.
    Complaint for land. Before Judge Boan. Douglas superior court. December 12, 1911.
    
      J. S. James and Roberts & Hutcheson, for plaintiffs in error.
    
      D. W. Blair, B. T. Frey, and W. A. James, contra.
   Eish, C. J.

Upon the trial the court refused to allow an amendment 1 offered to the answer, setting up new facts and a defense of which no notice had been given by the original answer. There was no affidavit accompanying the proposed amendment, as required by the Civil Code, •§ 5640, to the effect that at the time of filing the original answer the defendants did not omit the new facts or defense set out in the offered amendment for the purpose of delay, and that the amendment was not offered for delay. The record fails to show upon what ground the court refused to allow the amendment. Held: ■

1. Even if the amendment were otherwise good, there was no abuse of discretion in disallowing it, in the absence of an affidavit as provided for by the code section above cited.

2. There was no conflict in the evidence on any material point in the case, and the evidence introduced, with all reasonable deductions or inferences therefrom, demanded the verdict directed by the court.

Judgment affirmed.

All the Justices concur.  