Culverhouse

This appeal is from a judgment of foreclosure and sale of certain mortgaged premises, and from an order denying a new trial.

The main question in the case is, whether or not the trial court abused its discretion in refusing the defendants leave to file an amendment to their amended answer.

It appears that when the case was called for trial, the defendants, evidently supposing that it was necessary to tlieir defense that it should be pleaded and proved that they had, within a reasonable time, offered to rescind the contract, which they claimed to be without consideration, and tainted with fraudulent representations of the original holder of the note secured by the mortgage sought to be foreclosed, asked leave to file an amendment to the amended answer. This the court refused to allow, under the circumstances surrounding the matter, *545 unless the defendants would pay sixty-five dollars, “ as terms,” to the plaintiff.

It appears that this was to cover certain expenditures of the plaintiff in coming to the place of trial with counsel, which would be of no avail if the amendment was allowed, because a continuance of the cause would become necessary.

In this connection, it appears…