edge of the agent or attorney. When the pleading is verified by any other person than the party, he shall set forth in the affidavit his knowledge, or the grounds of his belief on the subject, and the reasons why it is not made by the party. Code, s. 258; C. C. P., s. 117; 1868-9, c. 159, s. 7. 491. Verification by corporation; when state is party. When a corporation is a party the verification may be made by any officer, or managing or local agent thereof upon whom summons might be served; and when the state or any officer thereof in its behalf is a party, the verification may be made by any person acquainted with the facts. Code, s. 258; 1901, c. 610; C. C. P., s. 117; 1868-9, c. 159, s. 7. 492. Verification before what officer. Any officer competent to take the acknowledgment of deeds, and any judge or clerk of the superior court, notary public, in or out of the state, or justice of the peace, shall be competent to take affidavits for the verification of pleadings, in any court or county in the state, and for general purposes. Code, s. 258; 1891, c. 140; C. C. P., s. 117; 1868-9, c. 159, s. 7. 493. Verification omitted, when; pleadings incompetent in criminal prosecutions. The verification may be omitted when an admission of the truth of the allegation might subject the party to prosecution for felony. And no pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in such pleading. Code, s. 258; C. C. P., s. 117; 1868-9, c. 159, s. 7. 494. Items of account; particulars furnished, when. It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged; but he shall deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, which, if the pleading is verified, must be verified by his own oath, or that of his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect that he believes it to be true, or be precluded from giving evidence thereof. The court or the judge thereof may order a further account when the one delivered is defective; and the court may, in all cases, order a bill of particulars of the claim of either party to be furnished. Code, s. 259; C. C. P., s. 118. 495. Pleadings construed. In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties. Code, s. 260; C. C. P., s. 119. 496. Irrelevant, redundant; indefinite, uncertain. If irrelevant or redundant matter be inserted in a pleading, it may be stricken out, on motion of any person aggrieved thereby, but this motion must be made before answer or demurrer, or before an extension of time to plead is granted. And when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment. Code, s. 261; C. C. P., s. 120. 497. Judgments pleaded; burden of proof. In pleading a judg ment or other determination of a court or of an officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts conferring jurisdiction. Code, s. 262; C. C. P., s. 121. 498. Conditions precedent pleaded; burden of proof. In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance; but it may be stated generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts showing such performance. Code, s. 263; C. C. P., s. 122. 499. Instrument for payment of money pleaded. In an action or defense founded upon an instrument for the payment of money only, it shall be sufficient for the party pleading to give a copy of the instrument, and to state that there is due to him thereon, from the adverse party, a specified sum which he claims. Code, s. 263; C. C. P., s. 122. 500. Private statutes pleaded. In pleading a private statute or right derived therefrom it shall be sufficient to refer to such statute by its title or the day of its ratification, and the court shall thereupon take judicial notice thereof. Code, s. 264; C. C. P., s. 123. 501. Libel and slander, complaint; onus. In an action for libel or slander it shall not be necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it shall be sufficient to state generally that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff shall be bound to establish, on trial, that it was so published or spoken. Code, s. 265; C. C. P., s. 124. Note. See s. 2012 et seq. 502. Libel and slander, answer. In the actions mentioned in the preceding section, the defendant may in his answer allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating cir cumstances. Code, s. 266; C. C. P., s. 125. 503. Allegations not denied, deemed true. Every material allegation of the complaint not controverted by the answer, and every material allegation of new matter in the answer, constituting a counterclaim, not controverted by the reply shall for the purposes of the action, be taken as true. But the allegation of new matter in the answer, not relating to a counterclaim, or of new matter in reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require. Code, s. 268; C. C. P., s. 127. 504. Pleading lost, copy used. If an original pleading or paper be lost or withheld by any person, the court may authorize a copy thereof to be filed and used instead of the original. 505. As of course, when. Any pleading may be once amended of course, without costs, and without prejudice to the proceedings already had, at any time before the period for answering it expires; or it can be so amended at any time, unless it be made to appear to the court that it was done for the purpose of delay, and the plaintiff or defendant will thereby lose the benefit of a term for which the cause is, or may be, docketed for trial; and if it appear to the court or judge that such amendment was made for such purpose, the same may be stricken out, and such terms imposed as to the court or judge may seem just. Code, s. 272; C. C. P., s. 131. 506. Upon demurrer sustained. After the decision of a demurrer, the judge shall, if it appear that the demurrer was interposed in good faith, allow the party to plead over upon such terms as may be just. Code, s. 272; C. C. P., s. 131; 1871-2, c. 173. 507. To pleading, process or proceeding, when. The judge or court may, before and after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party; or by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting her allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the fact proved. Code, s. 273; C. C. P., s. 132. 508. Effect of substantial. When the complaint is so amended as to change the nature of the action and the character of the relief demanded, the judgment rendered shall not operate as an estoppel upon any person acquiring an interest in the property in controversy prior to the allowance of such amendment. 1901, c. 486. 509. Unsubstantial defects disregarded. The court or judge thereof shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. Code, s. 276; R. C., c. 3, ss. 5, 6 ; C. C. P., s. 135. 510. When plaintiff ignorant of defendant's name; true name inserted when known. When the plaintiff shall be ignorant of the name of a defendant such defendant may be designated in any pleading or proceeding by any name; and when his true name shall be discovered, the pleading or proceeding may be amended accordingly. Code, s. 275; C. C. P., s. 134. 511. Supplemental pleadings. The plaintiff and defendant respectively may be allowed on motion to make a supplemental complaint, answer or reply, alleging facts material to the case occurring after the former complaint, answer or reply, or of which the party was ignorant when his former pleading was made, and either party may set up by a supplemental pleading, the judgment or decree of any court of competent jurisdiction, rendered since the commencement of such action, determining the matter in controversy in said action, or any part thereof, and if said judgment be set up by the plaintiff, the same shall be without prejudice to any provisional remedy theretofore issued or other proceedings had in said action on his behalf. Code, s. 277; C. C. P., s. 136. 512. Time for pleading enlarged; proceedings made conformable to law. The judge may likewise, in his discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited, or by an order to enlarge such time; and whenever any proceeding taken by a party fails to conform to law in any respect, the judge may, in like manner and upon like terms, permit an amendment of such proceeding, so as to make it conformable thereto. Code, s. 274; C. C. P., s. 133. 513. Mistake, surprise, excusable neglect. The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding. Code, s. 274; 1893, c. 81; C. C. P., s. 133. 514. Orders without notice, vacated. An order made out of court, without notice to the adverse party, may be vacated or modified without notice by the judge who made it, or may be vacated or modified on notice, in the manner in which other motions are made. Code, s. 546; C. C. P., s. 297. XIX. VARIANCE BETWEEN PLEADING AND PROOF. 515. Material; amendment when. No variance between the allegation in a pleading and the proof shall be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he had been misled; and thereupon the judge may order the pleading to be amended upon such terms as shall be just. Code, s. 269; C. C. P., s. 128. 516. Immaterial. Where the variance is not material as provided in the preceding section, the judge may direct the fact to be found according to the evidence, or may order an immediate amendment without costs. Code, s. 270; C. C. P., s. 129. |