error in sustaining the demurrer.91 Where a demurrer to a complaint has been properly sustained, and it does not appear that any leave was asked to amend the complaint, the judgment for the defendant, rendered upon the sustaining of the demurrer, will not be reversed, on the ground that leave to amend was not granted. After demurrer to a complaint is sustained, and the plaintiff, instead of amending, as given leave to do, appeals, the appellate court, in affirming the order, may, unless there has been a judgment rendered which it also affirms, grant leave to amend.93 So, also, if one defendant demurs to a complaint for misjoinder of another defendant, and the complaint is accordingly amended to obviate the objection by omitting the defendant wrongfully joined, a subsequent demurrer for failing to join such omitted defendant should not be sustained. To test the ruling on the demurrer, he should have gone to trial on the pleadings where the judgment on demurrer left them.95 In demurrer overruled to defective complaint, if defendant answers over, the court will treat such complaint as amended.96

99

94

The filing of a new complaint after demurrer sustained is not the commencement of a new action.97 So of an amended answer which supersedes the original.98 They simply take the place of the originals; and copies of the instruments sued on must be annexed thereto.100 All amendments which are not permitted of course under the sections of the code before quoted must be authorized by the court. Section 473 of the California Code of Civil Procedure provides that "the court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of any party, or a mistake in any other respect; and may upon like terms enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any

91 Gale v. Tuolumne Water Co., 14 Cal. 25.

92 Barker v. Freeman, 85 Cal. 533, 24 Pac. 926.

93 Greely v. McCoy, 3 S. Dak. 624, 54 N. W. 659; distinguishing People v. Jackson, 24 Cal. 630.

94 James v. Leport (Nev.), 4 Pac. 1184, 4 West Coast Rep. 584.

95 Gale v. Tuolumne Water Co., 14 Cal. 25.

96 Ward v. Moorey, 1 Wash. T. 104. 97 Jones v. Frost, 28 Cal. 245. 98 Id.; Gilman v. Cosgrove, 22 Cal. 356.

99 Barber v. Reynolds, 33 Cal. 497; Sands v. Calkins, 30 How. Pr. 1.

100 McEwen v. Hussey, 23 Ind. 395.

pleading or proceeding in other particulars," etc. This section omits the words "upon affidavit showing good cause therefor," contained in section 68 of the Practice Act. Sections 542 and 723 of the New York Code of Civil Procedure correspond substantially with the section above quoted.

It is within the court's discretion, after fixing the probable expense of a continuance occasioned by an amendment of an answer, to make the payment thereof by defendant a condition of allowing the amendment.101 It is not error, when leave to amend an answer is asked after trial begun, to grant it on payment of costs, fixed at one hundred dollars."

102

§ 792. Manner of amending.-The court may allow plaintiff to amend his complaint by writing changed dates on it.103 Where an issue is tendered in the testimony without objection, and testimony thereon is offered by both parties, the court may consider the pleadings amended to embrace the issue, and submit it by instructions.104 A pleading may be amended by filing a new and separate pleading containing the amendments desired and substituting it for the original pleading, or by interlining the amendment in the original pleading, or by filing a statement of the amendment and designating by reference where the new matter is to be inserted in the original pleading, or what part of the original pleading is to be considered as stricken out.105 When a petition is amended by filing a statement of the amendment, and designating by reference where the new matter is to be inserted in the original pleading, or what part of the original pleading is to be considered as stricken out, the two together are the amended petition.100

§ 793.

Amendments at trial.-The allowance of amendments at the trial is in the discretion of the court,107 and that discre

101 Gabriel v. Tonner, 138. Cal. 63, 70 Pac. 1021.

102 Jones v. Stoddart, 8 Idaho, 210, 67 Pac. 650.

103 Chamberlin v. Loewenthal, 138 Cal. 47, 70 Pac. 932.

104 Iverson v. McDonnell, 36 Wash. 73, 78 Pac. 202.

105 Turner v. Hamilton, 13 Wyo. 408, 80 Pac. 664.

106 Turner v. Hamilton, 13 Wyo. 408, 80 Pac. 664.

107 Van Santv. Pl. 812, 818, 1 Whitt. Pr. 617; Puterbaugh's Ill. Pr. 526; Jackson v. Warren, 32 Ill. 331; Thornton v. Borland, 12 Cal. 438; Gillan v. Hutchinson, 16 Cal. 153; Cooke v. Spears, 2 Cal. 409, 56 Am. Dec. 348; Stearns v. Martin, 4 Cal. 227. See Gwynn v. Butler, 17 Colo.

tion will rarely be revised,108 but, for its abuse, the appellate court will interfere.109 Where, from oversights of counsel, committed under pressure of business, pleadings are defective, amendments should be allowed with great liberality. In such cases, when an offer to amend is made at such a stage of the proceedings that the other party will not lose an opportunity to fairly present his whole case, amendments should be allowed with great liberality.110

112

Where the defendant lies by until trial before objecting to the sufficiency of the complaint, it is a proper exercise of discretion in the court or referee to allow the necessary allegations to be supplied by amendment, if they do not amount to a new cause of action. But leave to amend allegations filed against an insolvent debtor, by inserting the name of another creditor, was refused after the jury was sworn.1 No material amendment ean be allowed after the cause has been submitted to the jury, or a finding has been announced by a court.113 Where, in the course of a trial, it is discovered that pleadings are so defective that the real subject of dispute cannot be finally determined, the court should allow amendments on such terms as may be just,1 ,114 at any time after the commencement of the trial,115 or after a motion for nonsuit, if it would not operate as a surprise upon the defendant.116 It is always in time when it immediately follows an objection to the pleading, and does not come too late. because made after plaintiff has closed his testimony.117 Application for leave to amend the pleadings must be made to the trial court.118 Where an amendment offered to a pleading is not in writing, and there is no verification of the facts referred to in it, leave to amend is within the discretion of the court.119

114, 28 Pac. 466; Wild v. Oregon R. R. Co., 21 Or. 159, 27 Pac. 954.

108 Pierson v. McCahill, 22 Cal. 127; Sandoval v. Randolph (Ariz.), 95 Pac. 119; Fort Collins Dev. Ry. Co. v. France, 41 Colo. 512, 92 Pac. 953. 109 Cooke v. Spears, 2 Cal. 409, 56 Am. Dec. 348.

110 Kirstein v. Madden, 38 Cal. 163. 111 Woolsey v. Trustees of Rondout, 2 Keyes, 603.

112 Newton's Case, 2 Cranch C. C. 467, Fed. Cas. No. 10188.

113 Holcraft v. King, 25 Ind. 352. 114 Stringer v. Davis, 30 Cal. 318.

115 Peters v. Foss, 16 Cal. 357; Gavitt v. Doub, 23 Cal. 79. Amendments during trial. See Randall v. Greenhood, 3 Mont. 506; Palmer v. McMasters, 6 Mont. 172, 9 Pac. 898; Wild v. Oregon etc. Ry. Co., 21 Or. 159, 27 Pac. 954.

116 Farmer v. Cram, 7 Cal. 135; Valencia v. Couch, 32 Cal. 339, 91 Am. Dec. 589.

117 Id.

118 Reynolds v. Pascoe, 24 Utah, 219, 66 Pac. 1064.

119 Todhunter v. Klemmer, 134 Cal. 60, 66 Pac. 75.

120

Where an order permitting the filing of an amended complaint was made after the facts upon which the amendment was based were disclosed on hearing, the filing of a motion and affidavit showing cause for the amendment was unnecessary. Where notice of a proposed amendment setting up the defense of res adjudicata is given before the trial, and the court offers to grant a continuance if the opposite counsel is taken by surprise, the granting of the amendment is not erroneous.121 And after defendants have closed their case, and before the case is submitted, plaintiffs may be allowed to supply an omission in the testimony occasioned by mistake or inadvertence,122 or to plead the bankruptcy of the defendant in bar.123 Amendment of pleadings should be allowed at any stage of the trial when it is necessary for the purposes of justice.124 A court may allow a formal amendment to a complaint after the trial and during the argument.125 A complaint may be amended before judgment and after verdict, so as to conform to the verdict, but cannot be allowed in the appellate court,126 unless the appeal be taken from judgment on demurrer, 127 or from an order denying a new trial.128

794. Amendment

at

may

trial-Continued.-Defendant amend by inserting new matter,129 if not entirely foreign to the cause of action. 130 If an amended answer constitutes no defense to the action, leave to file the same may be properly refused.13 The fact that such new matter was well known to defendant at the time the original answer was filed is no good reason why the amendment should not be permitted.132 Defendant may amend

120 Jordan v. Greig, 33 Colo. 360, .80 Pac. 1045; Cooke v. Cain, 35 Wash. 353, 77 Pac. 682.

121 Murphy v. Ganey, 23 Utah, 633. 66 Pac. 190.

122 Priest v. Union Canal Co., 6 Cal. 170.

123 Simpson v. Miller, 7 Cal. App. 248, 94 Pac. 252.

124 Farmers' etc. Bank v. Stover, 60 Cal. 388. See Walsh v. McKeen, 75 Cal. 519, 17 Pac. 673; Doane v. Houghton, 75 Cal. 360, 17 Pac. 426; Beronio v. Southern Pacific R. R. Co., 86 Cal. 416, 21 Am. St. Rep. 57. 24 Pac. 1093; Burns v. Walsh, 10 Misc. 699, 31 N. Y. Supp. 788.

125 Hall v. Rice, 64 Cal. 443, 1 Pac. 891.

126 Hooper v. Wells Fargo & Co., 27 Cal. 11, 85 Am. Dec. 211. 127 Phelan v. Supervisors, 9 Cal.

15.

128 Argenti v. City of San Francisco, 30 Cal. 458.

129 Pierson v. McCahill, 22 Cal.

127.

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

131 Bransford v. Norwich Ins. Soc., 21 Colo. 34, 39 Pac. 419.

132 Pierson v. McCahill, 22 Cal. 127; Manha v. Union Fertilizer Co., 151 Cal. 581, 91 Pac. 393.

138

137

by striking out the counterclaim, and setting up the defense of the statute of limitations,135 or one of two defendants may be permitted severally to plead the statute, by filing a separate plea.136 It is not error to refuse to permit the defendant to set up the statute of limitations after he has answered to the merits.13 A defendant, by amending his answer, and taking issue on a new cause of action, added to the complaint by amendment, waives all objection to such amendment." So the filing of an amended answer is a waiver by a defendant of any objection to the ruling of the court sustaining a motion to strike out an original answer.139 Under the code of Louisiana, which allows general and special pleas if not inconsistent with each other, an amended answer which but specifies a particular fact in aid of the general denial is allowable.140 If the plaintiff amends his complaint, and the defendant obtains an order to have his answer on file stand as the answer to the amended complaint, the answer is to be treated as if filed when the order is made.1 141 An answer may be verified even at the close of the plaintiff's case.142 If the defendant does not know that too many are joined as plaintiffs till after the same appears in evidence, he should then apply for leave to amend his answer.143 If testimony offered by defendant is rejected because of a defective denial, defendant should be allowed to amend his denial.144 If defendant has acquired title to the demanded premises during litigation, and has not pleaded such title in a supplemental answer, it is not error to refuse to permit him on the trial to amend his answer so as to obviate the objection to the introduction of testimony excluded by the court under the original answer.145 But if the court refuses to allow the amendment, and evidence shows that the amendment would be immaterial, no injury results from the refusal.14

135 Wyman v. Remond, 18 How. Pr. 272; Hibernia etc. Loan Soc. V. Jones, 89 Cal. 507, 26 Pac. 1089; Morgan v. Morgan, 10 Wash. 99, 38 Pac. 1054.

136 Robinson v. Smith, 14 Cal. 254. 137 Stuart v. Lander, 16 Cal. 375, 76 Am. Dec. 538. See Owers v. Olathe Min. Co., 6 Colo. App. 1, 39 Pac. 980.

138 Secor v. Law, 9 Bosw. 163. See Bell v. Waudby, 4 Wash. 743, 31 Pac. 18.

139 Hexter v. Schneider, 14 Or. 184, 12 Pac. 668.

P. P. F. Vol. I-31

146

140 Andrews v. Hensler, 6 Wall. 254, 18 L. Ed. 737.

141 Mulford v .Estudillo, 32 Cal. 131.

142 Arrington v. Tupper, 10 Cal. 464; Lattimer v. Ryan, 20 Cal. 628.

143 Gillam v. Sigman, 29 Cal. 637; Ackley v. Tarbox, 31 N. Y. 564. 144 Stringer v. Davis, 30 Cal. 318.

145 McMinn v. O'Connor, 27 Cal. 238; Lobb v. Seattle R. & S. Ry., 48 Wash. 238, 93 Pac. 420; Chicago B. & Q. R. R. Co., v. Pollock, 16 Wyo. 321, 93 Pac. 847.

146 Jones v. Block, 30 Cal. 227.