§ 784e. General form of supplemental pleading.

[TITLE.]

Form No. 247e.

The plaintiff [or, defendant], for a supplemental complaint [or, answer] herein, pursuant to an order of this court, dated

[Or, when the proposed supplemental complaint is served with the motion for leave:]

The plaintiff [or, defendant], for a proposed supplemental complaint [or, answer] herein, alleges, etc.

CHAPTER XXXII.

AMENDMENTS.

§ 785. In general.-In California, as in most states having codes of civil procedure, it is provided that courts must in every stage of an action disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties.1 Unless some other restricted meaning can be given to this section, it is plainly unconstitutional and void. Under this rule, any and all trial courts may refuse to be governed by the law of procedure and evidence solemnly enacted by legislature, and, unless we can determine from the record both that the party complaining has suffered substantial injury and that a different result would have been probable if the law of procedure had been followed, there could be no reversal.2 If the error is such that it may not be disregarded, the question whether it may be cured by amendment is always important and sometimes difficult. Under the restrictions or limitations named in the statute, a court has power to amend its process, the pleadings in the cause, and the proceedings therein, including orders and the judgment or decree. The granting of amendments is largely in the discretion of the court, and must depend upon the circumstances of the particular case, and the consideration whether it is in furtherance of justice. Amendments are never allowable for the purpose of defeating justice; and leave to amend a pleading is of no effect unless the order is complied with.

2a

§ 786. Amendment of process.-The Code of Civil Procedure of California provides that "every court has power to amend and control its process and orders so as to make them conformable

1 Cal. Code Civ. Proc., § 475; N. Y. Code Civ. Proc., § 723; Stockton v. Glenn Falls Ins. Co., 121 Cal. 167, 53 Pac. 565.

2 San Jose R. Co. v. San Jose L. & W. Co., 126 Cal. 322, 58 Pac. 824.

2a As to exercise of discretion by trial court in granting amendments,

see Horn v. Reitler, 15 Colo. 317, 25 Pac. 501; Davis v. Johnson, 4 Colo. App. 545, 36 Pac. 887.

3 Heegaard v. Trust Co., 3 S. Dak. 569, 54 N. W. 656.

4 Kimball v. Gearhart, 12 Cal. 46; Briggs v. Bruce, 9 Colo. 282, 11 Pac. 204.

8

to law and justice." In New York, the court may upon the trial or at any other stage of the action, before or after judgment, in furtherance of justice, amend any process, pleading, or other proceeding, in certain specified particulars. Similar provisions are found in all the codes. But a summons is not amendable of course. It can only be amended by permission of the court." The particulars in which the court may authorize an amendment of process are numerous. A summons may be amended by inserting a notice of the cause of action. Leave has been granted to amend a summons by increasing the amount, although as to the increased amount the effect was to deprive the defendant of the benefit of the statute of limitations." And where by setting aside a summons and complaint as irregular the plaintiff would have been barred by the statute of limitations, the court, instead of setting the proceedings aside, permitted an amendment on payment of costs.10 An amendment of summons by referring to the complaint as annexed, when it is omitted, may be allowed, All mistakes may be corrected by amendment under section 723 of the New York code. Section 473 of the California Code of Civil Procedure is also very broad, though not so comprehensive as section 128, above quoted. If a writ be amendable, it will be accorded the same effect, with reference to acts done in execution of it, as if it had been amended.12

11

§ 787. Amendment of pleadings.-Any pleading may be amended once by a 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 to answer or demur to the amended pleading.13 In Idaho, great liberality in the allowance of amendments to pleadings, in the furtherance of justice between the

5 Code Civ. Proc., § 128, subd. 8. See N. Y. Code Civ. Proc. (1877), § 723.

7 McCrane v. Moulton, 3 Sandf. 736; Walkenshaw v. Perzel, 32 How. Pr. 310, 5 Rob. (N. Y.) 648.

8 Polock v. Hunt, 2 Cal. 193. Deane v. O'Brien, 13 Abb. Pr. 11. See, also, Sluyter v. Smith, 2 Bosw.

673.

10 Weir v. Slocum, 3 How. Pr. 397.

11 Foster v. Wood, 1 Abb. Pr. (N. S.) 150, 30 How. Pr. 284. Amendment of return of summons. Allison v. Thomas, 72 Cal. 562, 1 Am. St. Rep. 89, 14 Pac. 309.

12 Brann v. Blum, 138 Cal. 644, 72 Pac. 168.

13 Cal. Code Civ. Proc., § 472; N. Y. Code Civ. Proc., § 542. See Hedges v. Dam, 72 Cal. 520, 14 Pac. 133.

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parties, is required. Except as provided in these sections, leave to amend must be obtained. An amendment must be substantial, not merely colorable.15 Adding a verification to a complaint is not an amendment;16 and it will not be allowed where the original pleading was not verified. But it has been held to be no abuse. of discretion for the trial court to allow an amended complaint to be amended by adding a verification, though neither the original nor the amended complaint was verified." Amendments can only be allowed where there is a defect in the parties, in its prayers for relief, or in the omission or mistake of some fact or circumstance connected with the substance of the case." Where a complaint praying for legal relief states a cause of action entitling the plaintiff to equitable relief, the court may on the trial permit the prayer to be amended, so as to ask for the appropriate equitable relief.19 Courts should allow amendments with great liberality at any time before trial, if the amendment is essential to a fair trial on the legal merits of the case and does not occasion injurious delays.20 Amendments are to be allowed or denied in furtherance of substantial justice,that is, such justice as the law administers when correctly applied. The right to amend is not an absolute, unconditional one, but is to be allowed in furtherance of justice, upon equitable terms, and must be one which will not change substantially the claim or defense.22 A plaintiff is not permitted, under the guise of an amendment, to substitute for the original cause of action a new and different one.23 Motions to amend are not to be granted as matter of course, but only when good cause is shown therefor;24 and the party should have a reasonable opportunity to amend, if he desires to do so, upon demurrer being sustained.25

21

14 Kroetch v. Empire Mill Co., 9 Idaho, 277, 74 Pac. 868.

15 Snyder v. White, 6 How. Pr. 321.

16 George v. McAvoy, 6 How. Pr. 200.

17 Ruffatti v. Lexington Min. Co., 10 Utah, 386, 37 Pac. 591. See Buell v. Beckwith, 59 Cal. 480; Case v. Edson, 40 Kan. 161, 19 Pac. 635.

18 Verplanck v. Mercantile Ins. Co., 1 Edw. Ch. 46; Story's Eq. Pl. 884; Shields v. Barrow, 17 How. 130, 15 L. Ed. 158.

19 Walsh v. McKeen, 75 Cal. 519, 17 Pac. 673.

20 McMillan v. Dana, 18 Cal. 349; Kirstein v. Madden, 38 Cal. 163. 21 Stringer v. Davis, 30 Cal. 321. 22 Kelsey v. Chicago etc. R. R. Co., 1 S. Dak. 80, 45 N. W. 204.

23 Davis v. Johnson, 4 Colo. App. 545, 36 Pac. 887; People v. Mt. Shasta Mfg. Co., 107 Cal. 256, 40 Pac. 391.

24 Hayden v. Hayden, 46 Cal. 333. 25 Payne v. Baehr, 153 Cal. 441, 95 Pac. 895.

§ 788. Changing form of action.-An amended complaint setting up a cause of action at law in place of an equitable action should not be permitted.26 Where an application to amend a complaint is made during the trial of the cause, and the amendment is such as to change the action from one against the defendant to an action against the defendant and another party jointly, a denial of such motion is not an abuse of discretion.27 It is not

error to permit a petition in a suit to quiet title to be amended before answer, so as to change the action to one in ejectment, where no prejudice is shown,28 or from quantum meruit to express contract.29

§ 789. When allowable.-Amendments will be allowed to any extent, provided no new cause of action in substance is added;" as amendments substantially changing the claim or defense cannot properly be granted at any time,31 and the court should not allow a new and wholly different case to be made.32 Amendments to pleadings should be liberally allowed;33 but where objections are raised in the court below, and parties, instead of applying for leave to amend, succeed in procuring rulings in their favor by the trial court, they do so at their peril.3* An amendment made of course may add a new cause of action.35 In an action for breach of contract, an amendment of the com

26 Gibons V. Denver Brokerage etc. Co., 17 Colo. App. 167, 67 Pac. 913.

27 Petterson v. Stockton & T. C. R. Co., 134 Cal. 244, 66 Pac. 304.

28 Curtis v. Schmehr, 69 Kan. 124, 76 Pac. 434.

29 Cummings v. Weir, 37 Wash. 42, 79 Pac. 487.

30 Hollister v. Livingston, 9 How. Pr. 140.

81 Bailey v. Johnson, 1 Daly, 61; Woodruff v. Dickie, 31 How. Pr. 164; Ransom v. Wetmore, 39 Barb. 104; Whitcomb v. Hungerford, 42 Barb. 177; Foste v. Standard Ins. Co., 26 Or. 449, 38 Pac. 617.

32 Verplanck v. Mercantile Ins. Co., 1 Edw. Ch. 46; Roush v. Fort, 3 Mont. 175; Story's Eq. Pl. 884; Shields v. Barrow, 17 How. 130, 15 L. Ed. 158; Schofield v. Fitzhugh, 1 Cranch C. C. 108, Fed. Cas. No.

12474; The Harmony, 1 Gall. 123, Fed. Cas. No. 6081.

33 See Gould v. Stafford, 101 Cal. 32, 35 Pac. 429; Burns v. Scooffy, 98 Cal. 271, 33 Pac. 86; Wixon v. Devine, 91 Cal. 477, 27 Pac. 777; McCausland v. Ralston, 12 Nev. 195, 28 Am. Rep. 781; Carson v. Railsback, 3 Wash. T. 168, 13 Pac. 618; Garrison v. Goodale, 23 Or. 307, 31 Pac. 709; Baldock v. Atwood, 21 Or. 73, 26 Pac. 1058; Foste v. Standard Ins. Co., 26 Or. 451, 38 Pac. 617.

34 Robinson etc. Min. Co. v. Johnson, 13 Colo. 258, 22 Pac. 459, 5 L. R. A. 769.

35 Mason v. Whitely, 4 Duer, 611, 1 Abb. Pr. 85; Wyman v. Remond, 18 How. Pr. 272; Macqueen v. Babcock, 13 Abb. Pr. 268. But see Woodruff v. Dickie, 5 Rob. (N. Y.) 619; Davis v. Johnson, 4 Colo. App. 545, 36 Pac. 887.