36

plaint by inserting the words "for a valuable consideration" was not a statement of a new cause of action.3 Where a complaint was amended by striking out the words "wrongfully and unlawfully," and the demand for an injunction, the cause of action was not so changed that the amended complaint should be stricken out.37 A complaint setting up a cause of action based on fraudulent representation cannot, over defendant's objection, be amended so as to set up a cause of action based on mutual mistake. The amendment of a petition in an action for damages by the addition of the name of a party plaintiff does not substantially change the claim or defense.39

38

A court of chancery should rarely if ever permit amendments so changing the character of the pleadings as to make substantially a new case after the cause has been set for hearing, much less after it has been tried.40 Plaintiff may amend by a new count, introductive of a new cause of action, if it correspond in character with the original count in a kindred cause, admitting the same pleading and defense, and which might have been included in the original declaration." The plaintiff, before issue joined, may, by an amended pleading, state the facts on which an action is based, though there is a conflict between the facts as then alleged and as alleged in the original pleading. 42 For the purpose of determining whether new matter is entirely foreign to the cause of action in the original complaint, the original complaint must be liberally construed.43 Plaintiff cannot amend so as to change an action ex contractu to one ex delicto; nor to change the mode of trial;15 nor can the plaintiff

44

38 Frey v. Vignier, 145 Cal. 251, 78 Pac. 733.

87 St. Clair v. San Francisco etc. Ry. Co., 142 Cal. 647, 76 Pac. 485; Adams v. Hopkins, 144 Cal. 19, 77 Pac. 712; Frey v. Vignier, 145 Cal. 251, 78 Pac. 733; Kilham v. Western Bank & Safe Deposit Co., 30 Colo. 365, 70 Pac. 409; Tanner v. Harper, 32 Colo. 156, 75 Pac. 404; Bremen Min. Co. v. Bremen, 79 Pac. 806, 13 N. Mex. 111.

38 Connell v. El Paso Gold Min. etc. Co., 33 Colo. 30, 78 Pac. 677.

39 Hucklebridge v. Atchison etc. Ry. Co., 66 Kan. 443, 71 Pac. 814.

40 Walden v. Bodley, 14 Pet. 156, 10 L. Ed. 398.

41 Tiernan v Woodruff, 5 McLean, 135, Fed. Cas. No. 14027.

42 Keenan v. Washington Liquor Co., 8 Idaho, 383, 69 Pac. 112.

43 Nevada County etc. Canal Co. v. Kidd, 28 Cal. 673.

44 1 Van Santv. Pl. 768; Ramirez v. Murray, 5 Cal. 222; Lane v. Beam, 19 Barb. 51, 1 Abb. Pr. 65. Or, vice versa, Hackett v. Bank of California, 57 Cal. 335; Baldwin v. Rood, 49 Hun, 605, 1 N. Y. Supp. 713; Mea v. Pierce, 63 Hun, 400, 18 N. Y. Supp. 293.

45 McCarty v Edwards, 24 How. Pr. 236; Craig v. Hyde, 24 How. Pr. 313.

in ejectment set up title acquired after commencement of suit." So, also, facts which occur subsequent to filing the complaint, and which change the liabilities of the defendants, cannot be incorporated by amendment."7

49

An amendment may strike out a cause of action:48 An amended pleading cannot set up matter which occurred after suit brought. It must be presented by supplemental pleading. The fact that new matter set up by way of amendment was known to the defendant at the time of filing his original answer is no reason why the amendment should not be permitted.50 In an action for a fraudulent sale of a mine, an amendment striking out the offer to return the deed does not change the issues. tendered. A plaintiff may amend by filing a more full and particular account.52 The complaint may be amended within the time limited, by setting forth a new cause of action, and is not restricted to a cause of action of the same class as that in the original complaint, though all the causes set forth in the amended complaint must be of the same class and of a class to which the summons is appropriate. In California, as a rule, the courts. are extremely liberal as to amendments.

§ 790.

53

Amendments of course.-Amendments of course may be made, without costs to either party, to a pleading at any time before answer or demurrer filed, or after demurrer and before the trial of the issue of law thereon, but not after." But a party shall not so amend more than once. If defendant demurs to the complaint, it is an error for the court to refuse the plaintiff leave

46 Smith v. Billett, 15 Cal. 26. 47 Van Maren v. Johnson, 15 Cal. 308; Woodruff v. Dickie, 31 How. Pr. 164; Sheldon v. Adams, 18 Abb. Pr. 405, 41 Barb. 54, 27 How. Pr. 179. 48 Watson v. Rushmore, 15 Abb. Pr. 51.

49 Hornfager v. Hornfager, 6 How. Pr. 13; Lampson v. McQueen, 15 How. Pr. 345.

50 Sharon v. Sharon, 77 Cal. 102, 19 Pac. 230. See Dorn v. Baker, 96 Cal. 206, 31 Pac. 37.

51 Ahrens v. Adler, 33 Cal. 608. 52 Estate of Hidden, 23 Cal. 362; Valencia v. Couch, 32 Cal. 339; 91 Am. Dec. 589. How far the dis

54

cretion of the court in allowing amendments so as to change the form of action is restricted by the code, discussed in Brown v. Babcock, 3 How. Pr. 305; Spalding v. Spalding, 3 How. Pr. 297; Forniss v. Brown, 8 How. Pr. 59.

53 Brown v. Leigh, 49 N. Y. 78, 12 Abb. Pr. (N. S.) 193.

54 Cal. Code Civ. Proc., § 472; N. Y. Code Civ. Proc., § 542; 1 Van Santv. Pl. 792; 1 Whitt. Pr. 611; 1 Barb. Ch. 206; Allen v. Marshall, 34 Cal. 165; Lord v. Hopkins, 30 Cal. 76; Barber v. Reynolds, 33 Cal. 497.

55 Manha v. Union Fertilizer Co., 151 Cal. 581, 91 Pac. 393.

to amend his complaint before the decision on the demurrer ;56 but he cannot amend a second time without leave of the court.5 After demurrer, and before argument and submission of the issue thereon, either party may amend a pleading, by filing the same as amended, and serving a copy on the adverse party or his attorney, who has ten days to answer or demur thereto.58 A judgment by default within ten days after filing, but more than ten days after service of an amended complaint, is error; for defendant is entitled to the full ten days after filing in which to answer. If the complaint states a cause of action, the face of the record shows abuse of discretion in sustaining a demurrer without leave to amend, even for the second time.0

62

59

63

The right to amend as of course is absolute, and cannot be interfered with, unless the amendment is merely colorable, and made for purposes of delay only. And though absolute, it may be waived, either by express notice or noticing cause for trial. A party may amend of course where the same amendment would be allowed at the trial. An amendment that would have the effect of changing the parties to the action will not be allowed, unless there is something in the record to amend by. A complaint may be amended by changing a party from defendant to plaintiff, under the Oregon practice, by permitting pleadings to be amended by striking out or adding the name of a party.65 Without amending the summons, the names of additional defendants cannot be introduced.66 And a summons cannot be amended without leave of court.87 An amendment of course will not be allowed which sets up a different claim. By claim is meant the particular relief sought; though the cause of

64

56 Lord v. Hopkins, 30 Cal. 76.

57 Sands v. Calkins, 30 How. Pr. 1; Jeroliman v. Cohen, 1 Duer, 631; White v. Mayor of N. Y., 5 Abb. Pr. 322, 14 How. Pr. 495.

53 Cal. Code Civ. Proc, § 472. 59 Billings v. Palmer, 2 Cal. App. 432, 83 Pac. 1077.

60 Schaake v. Eagle etc. Can. Co., 135 Cal. 472, 63 Pac. 1025, 67 Pac. 759.

81 Griffin v. Cohen, 8 How. Pr. 451; Rogers v. Rathbun, 8 How. Pr. 466; Thompson v. Minford, 11 How. Pr. 273; Spencer v. Tooker, 12 Abb Pr. 353. 62 1 Van Santv. Pl. 796; Cusson v. Whalon, 5 How. Pr. 305.

64a

63 Getty v. Hudson River R. R. Co., 6 How. Pr. 269.

64 Lake v. Morse, 11 Ill. 587; Chase v. Dunham, 1 Paige, 572. But see Cal. Code Civ. Proc., § 473; N. Y. Code Civ. Proc., § 542.

64a Hill's Code, § 101.

65 Liggett v. Ladd, 23 Or. 26, 31 Pac. 81. As to amendment of complaint by dropping names of parties, see Ware v. Walker, 70 Cal. 591, 12 Pac. 475.

66 Follower v. Laughlin, 12 Abb. Pr. 105. 67 Walkenshaw v. Purzel, 32 How. Pr. 310.

69

action-that is, the statement of facts-may be amended." But an amendment could be allowed by inserting a count for goods sold and delivered without terms, and allowing the trial to proceed; such is not a case changing substantially the claim. In an action on a non-negotiable note, refusal to permit defendant to amend his pleadings, so as to show that the collection of the note has been enjoined in a suit between the original parties is reversible error." And "other allegations material to the case" may be introduced."1

§ 791. Amendment by leave of court.-The judge presiding at the trial has full power of amendment of pleadings.72 But a referee cannot order an amendment. And after the case is submitted the referee cannot allow the plaintiff to introduce an amended complaint and compel the defendant to file an amended. answer.73 In the furtherance of justice, amendments to pleadings should be liberally allowed; and if such amendment does not deprive the complaining party of some substantial right, it is not error to permit it.75 In New York, the power of the referee to allow amendments at the trial is the same as that of the judge, and his exercise of discretion will rarely be interfered. with.76

Amendments should be liberally allowed by the court, in furtherance of justice." But the refusal to allow them is presumed to be right, unless the character of the proposed amend

68 Chapman v. Webb, 6 How. Pr. 390. 69 Harrington v. Slade, 22 Barb. 161; Troy etc. R. R. Co. v. Tibbits, 11 How. Pr. 168; Vibbard v. Roderick, 51 Barb. 616.

70 Randolph v. Hudson, 12 Okla. 516, 74 Pac. 946.

71 Jeroliman v. Cohen, 1 Duer, 632; Baldock v. Atwood, 21 Or. 73, 26 Pac. 1058. The above are not all good authority in California, but may be consulted with profit.

72 See Cal. Code Civ. Proc., §§ 469, 470.

73 De La Riva v. Berreyesa, 2 Cal.

195.

74 Kindall V. Lincoln Hardware etc. Co., 10 Idaho, 13, 76 Pac. 992; Dunbar v. Griffiths, 14 Idaho, 120, 93 Pac. 654.

75 Idaho Placer Min. Co. v. Green, 14 Idaho, 294, 94 Pac. 161.

76 Brady v. Pinal Co., 8 Ariz. 114, 71 Pac. 910; Tanner v. Harper, 32 Colo. 156, 75 Pac. 404; Small v. Harrington, 10 Idaho, 499, 79 Pac. 461; Baines v. Coos Bay R. & E. R. & Nav. Co., 45 Or. 307, 77 Pac. 400; N. Y. Code Civ. Proc., § 1018; Dougherty v. Valloton, 6 Jones & Sp. 455; Smith v. Pelott, 63 Hun, 632, 18 N. Y. Supp. 301; Hall v. Abells, 57 Hun, 589, 10 N. Y. Supp. 581.

77 1 Van Santv. Pl. 809; McMillan v. Dana, 18 Cal. 339; Roland v. Kreyenhagen, 18 Cal. 455; Pierson v. McCahill, 22 Cal. 127; Stringer v. Davis, 30 Cal. 321; Vanderbilt v. Accessory Transit Co., 9 How. Pr. 352.

84

ment is shown on the record." Amendments are within the discretion of the court, and cannot be controlled by mandamus," and are governed by their own rules and modes of practice.S0 An application to amend a pleading is addressed to the sound discretion of the trial court;81 and will not be reviewed on appeal, except for an abuse of such discretion.82 Where the pleading is defective, demurrer should be sustained, and leave be granted to amend; and if the plaintiff then declines, final judgment should be given,83 unless the complaint is so defective that it cannot be made good by amendment. If a complaint has been amended twice, the refusal of the court to allow a third amendment is not an abuse of discretion.85 And leave to the plaintiff to amend his complaint may be refused, if the court is able to see that it cannot be so amended as to state a good cause of action. After demurrer sustained, amendments may be made upon motion.87 The party desiring amendment after demurrer sustained must make his motion to the court, and he cannot object on appeal that he was not permitted to amend when he made no offer.88 After demurrer sustained, defendant may be allowed to amend.89 After demurrer to defendant's answer sustained, it is in the discretion of the court to allow defendant to amend. Demurrer sustained, and plaintiff amends by making two counts instead of one. He cannot, after trial, complain of

90

78 Jessup v. King, 4 Cal. 331. 79 Smith v. Jackson, 1 Paine, 453, Fed. Cas. No. 13064. To the same effect, Ex parte Bradstreet, 7 Pet. 634, 8 L. Ed. 810.

80 Wright v. Hollingworth, 1 Pet. 165, 7 L. Ed. 97; United States v. Buford, 3 Pet. 12, 7 L. Ed. 585.

81 Emeric v. Alvarado, 90 Cal. 444, 27 Pac. 356; Daley v. Russ, 86 Cal. 114, 24 Pac. 867; Barnes v. Packwood, 10 Wash. 50, 38 Pac. 857; Hammond v. Foster, 4 Mont. 421, 1 Pac. 757; Billings v. Sanderson, 8 Mont. 201, 19 Pac. 307.

82 Garrison v. Goodale, 23 Or. 307, 31 Pac. 709; Belmont Min. Co. v. Costigan, 21 Colo. 471, 42 Pac. 647; Buno v. Gomer, 3 Colo. App. 456, 34 Pac. 256; Silsby v. Frost, 3 Wash. T. 388, 17 Pac. 887; Wixon v. Divine, 91 Cal. 477, 27 Pac. 777; Cheney v. O'Brien, 69 Cal. 200, 10

Pac. 479; Wallace v. Baisley, 22 Or. 572, 30 Pac. 432; Hexter v. Schneider, 14 Or. 184, 12 Pac. 668; Gould v. Gleason, 10 Wash. 476, 39 Pac. 123; Lower Kings etc. Ditch Co. v. Kings River Canal Co., 67 Cal. 577, 8 Pac. 91; County of Siskiyou v. Gamlich, 110 Cal. 94, 42 Pac. 468.

83 Gallagher v. Delaney, 10 Cal. 410.

84 Lord v. Hopkins, 30 Cal. 76. 85 Balch v. Smith, 4 Wash. 497, 30 Pac. 648.

86 People v. Mount Shasta Mfg. Co., 107 Cal. 256, 40 Pac. 391.

87 Smith v. Yreka Water Co., 14 Cal. 201; Gallagher v. Delaney, 10 Cal. 410.

88 Smith v. Yreka Water Co., 14 Cal. 201.

89 Pierson v. McCahill, 22 Cal. 127; Fish v. Reddington, 31 Cal. 186. 90 Gillan v. Hutchinson, 16 Cal. 153.