Amundio 7873-41

variance,

vided for.

470. Where the variance is not material, as pro- Immaterial vided in the last section, the Court may direct the how profact to be found according to the evidence, or may order an immediate amendment, without costs.

be deemed
a variance.

471. Where, however, the allegation of the claim What not to or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance, within the last two sections, but a failure of proof.

NOTE.-The allegations and proof must agree. For actions ex contractu and general matters, see Hathaway vs. Ryan, 35 Cal., p. 188.

472. (§ 67.) Any pleading may be amended once by the party of course, and without costs, at any time before answer or demurrer filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, who may have ten days thereafter in which to answer or demur to the amended pleading. A demurrer is not waived by filing an answer at the same time; and when the demurrer to a complaint is overruled and there is no answer filed, the Court must allow an answer to be filed. If a demurrer to the answer is overruled, the facts alleged in the answer must be considered as denied, to the extent mentioned in Section 462.

NOTE. The original section (2 67) has been changed
so as to permit amendments of course before answer
or demurrer. The last clause of the original section is
in substance embodied in the last section of the preced-
ing Chapter. If the defendant demurs to the complaint
the plaintiff must not be denied leave to amend his
complaint before the decision on the demurrer, and if
the demurrer is sustained, the plaintiff must have leave
to amend his complaint, unless it is so defective that it
cannot be remedied by amendment.-Lord vs. Hop-
kins, 30 Cal., p. 76. When a demurrer is overruled,
with leave to answer,
the order need not fix the time
within which the answer must be filed. The Court has

Amend-
course, and
demurrer.

ments of

effect of

Amend

ments by

power to fix such time for answering, but where no
time is fixed, the defendant should answer within the
same time as in case of service of a copy of the original
complaint.-People vs. Rains, 23 Cal., p. 128. Where
a demurrer to a complaint is sustained, and plaintiff
declines to amend, and appeals from the judgment and
the order sustaining the demurrer, if the order sustain-
ing the demurrer is affirmed, the Supreme Court cannot
then grant plaintiff leave to amend his complaint.—
People vs. Jackson et al., 24 Cal., p. 633. If the plain-
tiff amends his complaint, and the defendant obtains an
order allowing his answer on file to stand as the answer
to the amended complaint, the answer is to be treated as
if filed when the order is made.-Mulford vs. Estudillo,
32 Cal., p. 131. The filing of a new complaint after
demurrer has been sustained, is not commencing a new
action.-Jones vs. Frost, 28 Cal., p. 246.
The party
desiring amendment after demurrer sustained, must
make his motion to the Court, and if he does not so
move, he cannot object on appeal that he was not per-
mitted to amend.-Smith vs. Yreka Water Co., 14 Cal.,
p. 201. Where the complaint is defective, the Court
must sustain the demurrer, giving leave to the plaintiff
to amend his complaint, and if the plaintiff then does
not amend, final judgment should be given.-Gallagher
vs. Delaney, 10 Cal., p. 410. The defense relied on in
the answer being invalid, permission to amend after
judgment sustaining a demurrer to the answer was
properly refused. The allowance of the amendment
was matter of discretion, for the abuse of which only
could the Supreme Court interfere.-Gillan vs. Hutchin-
son, 16 Cal., p. 153. See, also, Thornton vs. Borland,
12 Cal., p. 438; Seale vs. McLaughlin, 28 Cal., p. 668.
Answer cannot be struck out for failing to pay demurrer
fees.-People vs. McClellan, 31 Cal., p. 101.

473. (§ 68.) The Court may, in furtherance of the Court. justice, and on such terms as may be proper, amend

Enlarging

time to

plead and

rolieving
from judg-
ments, etc.

any pleading or proceedings, 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; and may, upon like terms, enlarge the time for answer or demurrer. The Court may likewise, upon affidavit showing good cause therefor, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particu

Amended 1873-4.

lars; and may, upon like terms, allow an answer to be Samo.
made after the time limited by this Code; and may,
upon such terms as may be just, and upon payment
of costs, relieve a party, or his legal representatives,
from a judgment, order, or other proceeding taken
against him through his mistake, inadvertence, sur-
prise, or excusable neglect; and when, for any cause
satisfactory to the Court, or the Judge at chambers,
the party aggrieved has been unable to apply for the
relief sought during the term at which such judgment,
order, or proceeding complained of was taken, the
Court, or the Judge at chambers, in vacation, may
grant the relief upon application made within a reason-
able time, not exceeding five months after the adjourn-
ment of the term. When, from any cause, the sum-
mons and a copy of the complaint in an action have
not been personally served on the defendant, the Court
may allow, on such terms as may be just, such defend-

ant, or his legal representative, at any time within six
months after the rendition of any judgment in such
action, to answer to the merits of the original action.

NOTE.-1. ADDING OR STRIKING OUT PARTIES.If plaintiff's testimony on trial shows that there is a nonjoinder of persons who should have been plaintiffs, and a motion for a nonsuit is made on this ground, the Court may allow an amendment by adding the name of a co-plaintiff.-Acquital vs. Crowell, 1 Cal., p. 191; Heath vs. Lent, 1 Cal., p. 412. After ordering defendants, against whom no proof is adduced, to be stricken from the pleadings, can they be reinstated during the progress of the trial.-Beach vs. Covillaud, 2 Cal., p. 237. After the close of plaintiff's evidence, the complaint may be amended, by adding the name of another party plaintiff, if it does not affect the substantial rights of the parties. - Polk & Hensley vs. Coffin & Swain, 9 Cal., p. 56. If judgment is entered against "the defendants," and a portion of them were not sued, though their names appeared as defendants, by a mistake of the Clerk in entitling the cause, the error may be corrected.-Browner vs. Davis, 15 Cal., p. 9. If a Court alters a judgment, without notice, so as to include a party not served with process, if not

void it is voidable at the election of the party.-Chester vs. Miller, 13 Cal., p. 558. If a judgment entered embraces more parties than the testimony justifies, the proper practice is to move to correct the judgment in the Court below.-Mulliken vs. Hull, 5 Cal., p. 245. A Court may order judgment creditors, as subsequent incumbrancers, to be made parties to an action by an amendment of the complaint. - Horn vs. Volcano Water Co., 13 Cal., p. 70. Motions to add or strike out parties, etc., see Rowe vs. Chandler, 1 Cal., p. 175. 2. EXTENDING TIME FOR ANSWER OR DEMURRER. This can be done whenever the ends of justice seem to require it.-Wood vs. Forbes, 5 Cal., p. 62; Drum vs. Whiting, 9 Cal., p. 422; Thornton vs. Borland, 12 Cal., p. 438.

3. AMENDING COMPLAINT.-If the proof does not sustain the allegations of the complaint, but the proof is sufficient to entitle the plaintiff to relief in a Court of equity, under properly framed pleadings, an amendment should be allowed conforming the pleadings to the facts which should be in issue.-Connally vs. Peck, 3 Cal., p. 75; McDonald vs. Bear R. & A. W. & M. Co., 15 Cal., p. 145; Nevada County and Sacramento County Canal Co. vs. Kidd, 28 Cal., p. 673. The plaintiff brought action in assumpsit to recover rent for premises, the possession of which he had previously recovered by ejectment against the defendant. After the trial and verdict, which was set aside by the Court, he amended his complaint to make it in form an action of trespass for mesne profits. This should not have been permitted. Such an amendment would virtually change an action ex contractu into an action ex delicto.-Ramirez vs. Murray, 5 Cal., p. 222. Facts which occur subsequent to the filing of the original complaint, and which change the liabilities of the defendants, and, in consequence, the character of the judgment which is sought, cannot be incorporated into the original complaint by an amendment, without presenting averments inconsistent with the date of the commencement of the action.-Van Maren vs. Johnson, 15 Cal., p. 308. Refusing to allow a plaintiff to strike out a claim for damages, without regard to the purpose which may influence him, is error.-Grass Valley Quartz Mining Co. vs. Stackhouse, 6 Cal., p. 413. The wife is a proper party defendant in a suit for the foreclosure of a mortgage executed upon premises claimed as a homestead. When not made a party, she may intervene, or, by permission of the Court, be allowed to file a separate answer, the plaintiff having

the liberty to amend his complaint, if any matters are set up in the answer which he might wish to anticipate by further allegations.-Moss vs. Warner and Wife, 10 Cal., p. 296. If the complaint avers the ownership of land in the bed of and on the banks of a stream, and work done thereon to dig a canal and build a dam to use the waters of the stream, and is framed for a judgment to recover possession of the property from one who is averred to have ousted plaintiff, the plaintiff should, on motion to that effect, be allowed to amend his complaint by inserting therein averments of his prior appropriation of water and a diversion by defendant, with prayer for an injunction.-Nevada County and Sacramento County Canal Co. vs. Kidd, 28 Cal., p. 673. A complaint cannot be amended in the Supreme Court so as to make it correspond with the verdict. The District Court, in a proper case before judgment, may direct the complaint to be so amended.-Hooper vs. Wells, Fargo & Co., 27 Cal., p. 35. Plaintiff may amend his complaint at any time before issuance of summons without leave of the Court, if there has been no appearance of defendant.-Allen vs. Marshall, 34 Cal., p. 165.

4. AMENDMENT TO ANSWER.-A joint claim by two persons cannot be pleaded as a counter claim by one defendant; but he may amend, and aver that the whole interest therein has been transferred to him.Stearns vs. Martin, 4 Cal., p. 229. Because new matter set up by an amendment was well known to the defendant at the time he filed his original answer, is no good reason for declining to permit amendment.-Pierson vs. McCahill, 22 Cal., p. 127. An amended answer supersedes the original and destroys its effects as a pleading.-Gilman vs. Cosgrove, 22 Cal., p. 356; Jones vs. Frost, 28 Cal., p. 246.

5. SETTING ASIDE JUDGMENT BY DEFAULT.-Bailey vs. Taaffe, 29 Cal., p. 422. A judgment by default may be set aside on the ground of fraud or surprise.— Bidleman vs. Kewen, 2 Cal., p. 250. An order of Court setting aside a default and judgment entered during vacation is regular and correct, where there has been no service of summons upon the defendants.Pico vs. Carrillo, 7 Cal., p. 30. In an action of ejectment against two defendants, one who was served with summons and made default, and without any service being made upon the other, a judgment was entered against both for possession of the premises and costs.

52-VOL. I.