maintenance of the suit. Whether the former answer is wholly superseded by a supplemental one must depend on its form and the circumstances of the case, as inconsistent defenses may be pleaded under the codes.

Circumstances occurring subsequently to filing an answer, materially affecting the rights of the respective parties, to the advantage of the defendant, should be embodied in a supplemental answer, to authorize evidence of them without plaintiff's consent. Such facts cannot be incorporated with the original complaint by an amendment without presenting averments inconsistent with the date of the commencement of the action; as when a female marries, and her husband must be joined with her, an averment of the marriage should be made by supplemental pleading, and not by amendment of the original.

Neither a purchaser at sheriff's sale, as such, nor a redemptioner, either before or after redemption, nor an assignee of the sheriff's certificate of sale, upon his own ex parte motion, made in his own name, is entitled to have the judgment upon which the execution or order of sale issued vacated, and himself substituted as plaintiff, in order that he may file a supplemental complaint to bring in other parties."

A complaint and supplemental complaint incorporated in one document, styled "Amended and supplemental complaint," the supplemental complaint being distinguished only by being contained in separately but consecutively numbered paragraphs, are to be considered as separate pleadings. 10

774. When allowed.-If defendant has answered generally to a matter of which he has no particular knowledge, he may be allowed to file a supplemental answer on the same subject after he has acquired particular information concerning it, and to introduce into such answer new matter which has come to his knowledge since filing the original answer, on furnishing the opposite party with the names of the witnesses by whom he expects to prove it." Leave will not be given to set up by supplemental answer matter not constituting a defense.12 And the answer proposed must be true, and must contain a good appa-Pietra, 151 Cal. 732, 91 Pac.

7 Van Maren v. Johnson, 15 Cal. 308; Moss v. Shear, 30 Cal. 472.

8 Van Maren v. Johnson, 15 Cal. 311. Abadie v. Lobero, 36 Cal. 390.

10 California Farm etc. Co. v. Schi

593.

11 Caster v. Wood, 1 Baldw. 289, Fed. Cas. No. 2505.

12 Betz v. Betz, 19 Abb. Pr. 90.

defense, or leave will be refused, and its truth may be inquired into on motion.18 Permission should be obtained on motion, on affidavit and notice, before trial. Where new facts amount to entire satisfaction, it is the duty of the court to allow the motion. without reference to the question of laches.15 Where a contract sued on provides for payments in installments, a supplemental pleading may be filed to cover those installments accruing after suit filed.16 A mere defect in statement of a defense set up in a supplemental answer is not sufficient reason for refusing to permit it to be filed.1

§ 775. After reversal.-The higher court, upon a reversal and further proceedings being awarded, may allow a supplemental answer to bring before the court the facts which were proper to be known before instructions were given to a master as to the mode of settling the accounts, and no objection can be taken to such allowance upon a subsequent appeal.18

§ 776. Discharge of debt.-Evidence of the discharge of the debt sued on by transactions subsequent to the filing of an answer is admissible only under the plea of payment puis darrein continuance. 19 A settlement between the parties may be brought before the court by supplemental answer.20

§ 777. Foreclosure. A supplemental answer to a bill of foreclosure should embrace new matter discovered subsequent to the filing of the original answer. But this is a matter of discretion with the court, who will not enforce the rule so as to work injustice.21

§ 778. Judgment. If judgment is rendered in another action after answer is made, the proper course to make evidence of such judgment admissible is to obtain leave to serve and file a supplemental answer.22

13 Morel v. Garelly, 16 Abb. Pr. 269.

14 Garner v. Hannah, 6 Duer, 262. 15 Drought v. Curtiss, 8 How. Pr. 56.

16 Hodges v. Price, 38 Wash. 1, 80 Pac. 202; Knapp v. Order of Pendo, 36 Wash. 601, 79 Pac. 209.

17 Burnett v. Ewing, 39 Wash. 45, 80 Pac. 855.

18 Williams v. Gibbes, 20 How. 535, 15 L. Ed. 1013.

19 Jessup v. King, 4 Cal. 331. 20 McRea v. Warehime, 49 Wash. 194, 94 Pac. 924.

21 Suydam v. Truesdale, 6 McLean, 459, Fed. Cas. No. 13656.

56.

22 Drought v. Curtiss, 8 How. Pr.

§ 779. Parties changed.-If, owing to matters which have occurred pending the action, there is a misjoinder of parties plaintiff, objection thereto must be taken by a supplemental answer, or it is waived.23 Demurrer is not the proper practice to eliminate parties on account of matters occurring subsequently.24

§ 780. Title acquired.-If in an action to recover possession of real estate defendant acquires title to the premises pending the litigation, it must be pleaded by supplemental answer, in order to make evidence thereof admissible.25

§ 781. Title lost. In an action for ejectment, the defendant cannot show that plaintiff has parted with right to possession by conveying title to another, unless such fact is set up in the original or a supplemental answer.26

§ 782. Answer to supplemental pleading.-Where the code provides for supplemental pleadings to show facts which occur after the former pleadings are filed, issue on such facts can only be joined on such supplemental pleadings, unless such pleadings are waived.27

§ 783. Amendment.-A supplemental complaint may be amended once of course, and a new cause of action set up by the amendment.28

§ 784. Effect of supplemental pleading. The legislature, in allowing supplemental complaints and answers, intended to follow the former chancery rule, and thus chose terms which import something additional or amendatory to what has gone before.29 It is, therefore, not allowable to a defendant, as a general rule, without special permission, to answer anew, or further the origi nal complaint.30 Leave to file the supplemental complaint does not establish the plaintiff's right to sue for the original cause

23 Calderwood v. Pyser, 31 Cal. 333. 24 California Farm etc. Co. v. Schiappa-Pietra, 151 Cal. 732, 91 Pac.

593.

25 McMinn v. O'Connor, 27 Cal. 246; Moss v. Shear, 30 Cal. 468.

26 Id.

27 Powell v. Nolan, 27 Wash. 318, 67 Pac. 712, 68 Pac. 389.

28 Devine v. Duncan, 52 How. Pr. 446.

29 Slauson v. Englehart, 34 Barb. 198.

80 Dann v. Baker, 12 How. Pr. 521.

of action, and decides nothing as to the plaintiff's rights."1 A new cause of action cannot be set up by supplemental complaint. The matter must be consistent with and in aid of the original proceeding.32 Nor can the nature of the plaintiff's claim be changed,33 or the rights of a substituted defendant enlarged so as to enable him to traverse a fact submitted by his predecessor.34 The statute of limitations runs in favor of a new party brought in by supplemental complaint to the date of its filing.35

FORMS OF SUPPLEMENTAL PLEADINGS.

§ 784a. Supplemental complaint.

Form No. 247a.

[TITLE OF COURT AND CAUSE.]

The plaintiff for his supplemental complaint herein, served under and pursuant to an order of this court duly made, dated on the... day of to which reference is hereby

made, alleges:

19

[Set forth new and additional facts.]

§ 784b. Notice of motion for leave to continue action and serve supplemental complaint.

[TITLE.]

Form No. 247b.

Take notice, that on the affidavit of C. D. and the proposed supplemental complaint, of which copies are herewith served upon you, and on the pleadings in this action, C. D., as executor of the plaintiff, will move the court, at a special term thereof, to be held at . . ., on the . . . day of. . ., 19. ., at . . . o'clock in the counsel can be heard, for

in

noon, or as soon thereafter as leave to continue this action in the

31 Robbins v. Wells, 26 How. Pr. 15.

32 Wattson v. Thibou, 17 Abb. Pr. 184; Cordier v. Cordier, 26 How. Pr. 187.

P. P. F. Vol. I-30

33 Cheeseman v. Sturges, 19 Abb. Pr. 293.

34 Forbes v. Waller, 25 N. Y. 430. 35 Matteson v. Wagoner, 147 Cal 739, 82 Pac. 436.

name of the said [executor] as plaintiff, and to serve and file. said supplemental complaint in this action; and for such other or further relief as may be just.

..., Attorney for C. D., Executor.

§ 784c. Order allowing supplemental complaint.

[TITLE.]

Form No. 247c.

[At a special term, etc.]

On reading and filing [describe motion papers], and on motion of E. F. for the plaintiff, and after hearing G. H. [or, no one appearing] in opposition:

Ordered, that the plaintiff have leave to serve, within.. days after this date, a copy of the supplemental complaint filed upon this motion, on payment to the [defendant] of . . . dollars, costs.

[Or, Ordered, that the plaintiff have leave to make and file the proposed supplemental complaint herein, upon payment of . . dollars, costs of motion to the defendant; and further, that upon such payment being made, the service of said supplemental complaint heretofore made stand as the completed service thereof, and that the defendant have time to plead to said supplemental complaint until and including . . .,

19

§ 784d. Order granting leave to make supplemental answer. Form No. 247d.

[TITLE]

On reading and filing [describe motion papers], and on motion of E. F. for the plaintiff, and after hearing G. H. [or, no one appearing] in opposition:

Ordered, that the defendant be allowed to make a supplemental answer herein, setting up payment of the note in suit [or, as proposed by him], upon payment to the plaintiff of . . . dollars, motion costs; such answer [or complaint] to be served upon the attorney for the plaintiff [or defendant] within . . . days from the entry of this order [the issue to stand as of the . . . day of . . ., 19 . . ].

[Or provide that supplemental answer already served stand without further service as in case of supplemental complaint.]