Hoogendorn

(after stating the facts as above).

The appellant contends that the court below erred in permitting the plaintiff to file the amended complaint. It is unnecessary to cite authorities to the proposition that, in order to promote justice, a court may, in its discretion, permit amendment at any time before or during trial, unless the amendment as violative of some positive rule of law, or is such as to surprise or prejudice the opposite party. It is contended that the effect of the amendment permitted in this case was to change the theory of the suit, and to surprise the appellant to his prejudice. The objection is not well taken on either ground. Both the complaints charged in substance the same state of facts.. In the first it was alleged that the conveyance to the appellant was intended as security, and that the instrument which, two days later, he executed in return, was a defeasance. But a copy of the instrument was attached to the complaint, and the defendant was thereby advised of its purport. The relief sought in both complaints was the same, and it is doubtful whether any amendment was necessary to the original complaint in order that the court might render a just decree…