appearing in the action, is a nullity incapable of amendment.192 Proceedings under sections 989 to 994 of the California Code of Civil Procedure, for the purpose of binding a partner by a judgment recovered against his copartner, are in the nature of an action upon a judgment, and neither the pleadings nor the judg ment in the original action can be amended.193 Every court of record has inherent power to amend its record to correspond with the actual facts, and this power may be exercised at any time.194 It may amend its record nunc pro tunc so as to make the record express what was done at the time.195 But a court has no power, under the forms of an amendment, to correct a judicial error, or to make of record an order not in fact given. 196 The rule that after the term there can be no amendment of a record, unless there is something in the record to amend by, does not apply to the amendment of minute entries or orders of court not forming a part of the judgment-roll. These may be amended by the court to correspond with the facts, upon any competent evidence showing what were the facts, and that a mistaken entry was made by the clerk.197

§ 798. What amendments should be allowed.-Plaintiffs should be permitted so to amend as to present for determination their legal rights; or to express the cause of action originally intended;198 or to strike out a cause of action;199 or to strike out a claim for damages;200 or to increase the amount of damages claimed,201 to ask for the statutory treble damages upon the same common-law action,202 even after issue joined ;203 or to change the venue.204 If a wife should intervene in an action, or file a

192 Schoelkopf V. Ohmeis, 11 Misc. 253, 32 N. Y. Supp. 736.

193 Waterman v. Lipman, 67 Cal. 26, 6 Pac. 875.

194 Kaufman v. Shain, 111 Cal. 16, 52 Am. St. Rep. 139, 43 Pac. 393; Crim v. Kessing, 89 Cal. 486, 23 Am. St. Rep. 491, 26 Pac. 1074; Frink v. Frink, 43 N. H. 508, 80 Am. Dec. 189, 82 Am. Dec. 172

195 Breene v. Booth, 3 Colo. App. 470, 33 Pac. 1007. See Carter v. Koshland, 12 Or. 492, 8 Pac. 556.

196 Egan v. Egan, 90 Cal. 15, 27 Pac. 22.

197 Kaufman v. Shain, 111 Cal. 16, 52 Am. St. Rep. 139, 43 Pac. 393.

198 McDonald v. Bear River etc. W. & M. Co., 15 Cal. 145; Nevada County etc. Canal Co. v. Kidd, 28 Cal. 673. 199 Watson v. Rushmore, 15 Abb. Pr. 51.

200 Grass Valley Q. M. Co. v. Stackhouse, 6 Cal. 413.

201 1 Van Santv. Pl. 364; Gregg v. Gier, 4 McLean, 208, Fed. Cas. No. 5799; Frankfurter v. Home Ins. Co., 6 Misc. 49, 26 N. Y. Supp. 81.

202 Eklund v. B. R. Lewis Lumber Co., 13 Idaho, 581, 92 Pac. 532.

203 Merchant v. New York Life Ins. Co., 2 Sandf. 669.

204 Stryker v. New York Exch. Bank, 42 Barb. 511.

separate defense, plaintiff may amend.205 A plaintiff may amend by inserting averments of prior appropriation, a diversion by defendants, with a prayer for an injunction.206 In attachment, pending motion to dissolve the attachment, plaintiff may have leave to amend the complaint.207 Circumstances authorizing an arrest, occurring subsequent to filing the complaint, should be set forth in a supplemental complaint.208 Leave may be granted to fill blanks in the complaint, and reply specially to plea of statute of limitations on payment of full costs. 209 A variance between the writ and the complaint in respect to the return-day may be amended.210 The assignee may amend the assignment by inserting the words, "For value received, I hereby assign the within account." 21 A garnishee may amend his answer by correcting an error which could not reasonably have been avoided.212 Petitions in railroad proceedings may be amended.213 The omission to show an information, in the nature of a writ of quo warranto, that the offices usurped are corporate offices, may be amended.214 In slander, by amendment, the words charged may be changed.215 If the plaintiff mistakes his remedy, and brings an action at law for damages, when it should have been in equity for an accounting, but inserts some averments in the complaint, entitling him to some measure of equitable relief, the appellate court will send the case back with leave to amend the complaint.216

Where the proof does not sustain the allegations of the bill, and where, by the proof, the complainant would be entitled to relief in a court of equity if his pleadings had been properly framed, amendments may be allowed to conform the pleadings to the facts. proved.217 Where the complaint alleges a gift inter vivos, and

205 Moss v. Warner, 10 Cal. 296. 206 Nevada County etc. Canal Co. v. Kidd, 28 Cal. 673.

207 Hathaway v. Davis, 33 Cal. 161. 208 Davis v. Robinson, 10 Cal. 411. 209 Ferris v. Williams, 1 Cranch C. C. 281, Fed. Cas. No. 4749.

210 Duvall v. Craig, 2 Wheat. 45, 4 L. Ed. 180; Wilder v. McCormick, 2 Blackf. 31, Fed. Cas. No. 17650. 211 Ryan v. Maddux, 6 Cal. 247. 212 Smith v. Browne, 5 Cal. 118. 213 Contra Costa R. R. Co. v. Moss, 23 Cal. 325.

214 Gunton v. Ingle, 4 Cranch C. C. 438, Fed. Cas. No. 5870.

215 Dougherty v. Bentley, 1 Cranch C. C. 219, Fed. Cas. No. 4024.

216 Blood v Fairbanks, 48 Cal. 171. 217 Stringer v. Davis, 30 Cal. 318; Connalley v. Peck, 3 Cal. 82; Tryon v. Sutton, 13 Cal. 494; Valencia v. Couch, 32 Cal. 339, 91 Am. Dec. 589; Bedford v. Terhune, 30 N. Y. 453, 86 Am. Dec. 394; Walsh v. Washing. ton Marine Ins. Co., 32 N. Y. 427; Van Buskirk v. Stow, 42 Barb. 9. Allowance of amendments conforming pleadings to proofs. See Bean v. Stoneman, 104 Cal. 49, 37 Pac. 777, 38. Pac. 39; Ward v. Waterman, 85 Cal. 488, 24 Pac. 930; Kamm v. Bank

219

evidence is introduced, without objection, showing a gift causa mortis, an amendment of the complaint to conform to the proofs is in furtherance of justice, and is properly allowed.218 Where evidence is received, without objection, as to material matters not set up in the pleadings, a refusal of leave to amend so as to conform the pleadings to the real issue tried is reversible error.2 If evidence is objected to because the defense under which it is ordered is defectively pleaded, the court should allow the pleading to be amended.220 In ejectment, amendments are liberally allowed,221 The date of the demise may be amended so as to conform to the title,222 or may extend the term of the fictitious lease even after judgment.223 But amendments by adding a count stating a demise under a new title are not allowed, as distinct ejectments may be brought to try them.224 A declaration in an action of ejectment, in which, according to the provisions of the laws of Tennessee, the defendant was held to bail, stated two demises, by citizens of different states. The cause coming on for trial before a jury, the plaintiffs suffered a nonsuit, which was set aside; and the court, on the motion of the plaintiffs, permitted the declaration to be amended, by adding a count on the demise of a citizen of another state; it was held that a judgment upon the new count was valid.22

225

§ 799. Amendment of complaint. The right to amend a complaint, even after leave granted, is limited to an accurate and correct expression of a cause of action which theretofore had been inaccurately or insufficiently expressed.228 Where the complaint

of California, 74 Cal. 191, 15 Pac. 765; Bryan v. Tormey, 84 Cal. 126, 24 Pac. 319; Williston v. Camp, 9 Mont. 88, 22 Pac. 501; Palmer v. Jones, 69 Hun, 240, 23 N. Y. Supp. 584; Herendeen v. De Witt, 49 Hun, 53, 1 N. Y. Supp. 467; Flynn v. Westmayer, 4 N. Y. Supp. 188; Galliher v. Cadwell, 3 Wash. T. 501, 18 Pac. 68.

218 Walsh v. Bowery Sav. Bank, 7 N. Y. Supp. 97, 7 N. Y. Supp, 669; 15 Daly, 403.

219 Cook v. Croisan, 25 Or. 475, 36 Pac. 532. See Palmer v. McMasters, 6 Mont. 169, 9 Pac. 898; Greer v. Squire, 9 Wash. 359, 37 Pac. 545.

220 Carpentier v. Small, 35 Cal. 346.

on file is based upon a written lease and an assignment thereof, the former containing a forfeiture clause binding upon all parties, it is not error when the cause is about to be reached for trial to refuse to permit an amended complaint to be filed by which the written instrument is sought to be set aside or reformed so as to relieve the plaintiff entirely from the effects of the clause of forfeiture.227 The amendment of the complaint during the progress of the trial is a matter within the discretion of the court, and no error can be founded thereon when it appears that no different answer was thereby required, and that the defendant was not taken by surprise, and did not ask for time to prepare an answer to the matters covered by the amendment.228 An error in the admission of immaterial evidence is cured by a subsequent amendment of the complaint before the close of the trial, rendering the evidence material.220 Pending a motion for a nonsuit, it is within. the discretion of the court to permit the plaintiff to amend his complaint so as to conform to the evidence.230 The privilege of amending a complaint after the trial of the issue of law, raised by demurrer, is in the discretion of the trial court, and where the demurrer is sustained without leave to amend, and nothing appears in the record to show an abuse of discretion, or that the plaintiff applied to the trial court for leave to amend, or took an exception to a refusal of the court to grant such leave, it is too late to raise the objection for the first time on appeal that the court failed to grant it.231

The amendment of a complaint after a demurrer sustained thereto is a waiver of any error in sustaining the demurrer.232 So an error in overruling a demurrer to a complaint is cured if the plaintiff subsequently amend his complaint in the particular to which the demurrer was directed,233 as a statement that certain papers were "duly recorded," in place of giving their date of

227 Patrick v. Crowe, 15 Colo. 543, 25 Pac. 985.

228 Hulbert v. Brackett, 8 Wash. 438, 36 Pac. 264.

229 Curtiss v. Etna Life Ins. Co., 90 Cal. 245, 25 Am. St. Rep. 114, 27 Pac. 211.

230 Kamm v. Bank of California, 74 Cal. 191, 15 Pac. 765.

231 Buckley v. Howe, 86 Cal. 596, 25 Pac. 132; Smith v. Taylor, 82 Cal.

533, 23 Pac. 217; Hawthorne v. Siegel, 88 Cal. 159, 22 Am. St. Rep. 291, 25 Pac. 1114.

232 Ganceart v. Henry, 98 Cal. 281, 33 Pac. 92; Rockwell v. Holcomb, 3 Colo. App. 1, 31 Pac. 944.

233 Walsh v. McKeen, 75 Cal. 519, 17 Pac. 673. See, also, Madden v. Occidental S. S. Co., 86 Cal. 445, 25 Pac. 5; Bell v. Waudby, 4 Wash. 743, 31 Pac. 18.

recordation, which in the original complaint was wrongly given.234 Pending the trial of an action, the court has power, upon such terms as may be just, to permit a second amended complaint to be filed, which embodies substantially the same allegations as the original complaint.235

§ 800. The same-Effect of amended complaint.-When an amended complaint is filed and served, the original ceases to perform any function as a pleading.236 But an original is not superseded by an amended complaint for all purposes, and the former may be considered as a part of the record of the case for the purpose of showing when the action was commenced, and whether or not a new or different cause of action was introduced by the amendment upon the hearing of a demurrer raising those questions.237 An amended complaint based upon the same cause of action relates back to the date upon which the original complaint was filed, as regards the statute of limitations.238 Where the contract sued on provides for payments in monthly installments, a supplemental complaint may be filed to cover installments accruing after the action was commenced.230

§ 801. The same-In particular actions. In an action of ejectment to recover a quarter-section of land, described as being in "range 19 east," an amendment to the complaint, describing the land as "range 20 east," is not the substitution of a new cause of action, and may properly be allowed.240 In an action of partition, the bringing in of new parties, alleging that they have or claim an interest in the subject-matter of partition, is an amendment in matter of substance, requiring services of the amended complaint upon a defaulting defendant.241

234 Williamson v. Joyce, 137 Cal. 151, 69 Pac. 980.

235 Riverside Land etc. Co. v. Jensen, 73 Cal. 550, 15 Pac. 131.

236 La Société etc. v. Weidmann, 97 Cal. 507, 32 Pac. 583; Schneider v. Brown, 85 Cal. 205, 24 Pac. 715; Mott v. Mott, 82 Cal. 413, 22 Pac. 1140.

237 Redington v. Cornwell, 90 Cal. 49, 27 Pac. 40; Collins v. Scott, 100 Cal. 446, 34 Pac. 1085; Dougall v. Schulenberg, 101 Cal. 154, 35 Pac. 635; Easton v. O'Reilly, 63 Cal. 305.

238 White v. Soto, 82 Cal. 654, 23 Pac. 210.

239 Knapp v. Order of Pendo, 36 Wash. 601, 79 Pac. 209.

240 Heilbron v. Heinlen, 72 Cal. 376, 14 Pac. 22. See Swift v. Mulkey, 14 Or. 59, 12 Pac. 76.

241 Reinhart v. Lugo, 86 Cal. 395, 21 Am. St. Rep. 52, 24 Pac. 1089. Amendment of complaint in mortgage foreclosure. Bank of Sonoma County v. Charles, 86 Cal. 322, 24 Pac. 1019. Amendment by change in