§ 802. The same Objection to original complaint.-Where an amended complaint which is unobjectionable has been filed in an action, an objection upon appeal from a judgment therein that the original complaint failed to state a cause of action is untenable.24 242 § 803. The same Time to answer.-Where the complaint is amended upon the trial, by the addition of a few lines, to obviate an objection to the admission of evidence upon a point which the pleader had evidently intended to make by the original complaint, it is not an abuse of discretion to require the defendant to answer the amendment immediately, if the answer could be easily made. at once without inconvenience to the defendant.248 § 804. Verification of complaint.-Defendant waives any objection to pleading on grounds that it is not verified, unless he makes a motion to strike it from the files,244 and it cannot be objected for the first time on appeal that the complaint was not verified.245 805. Amendment of answer. Liberality in allowing amendments to pleadings is particularly applicable to amendments to an answer.240 But it is not an abuse of discretion for the trial court to refuse to allow an amended answer to be filed, when the matters set out therein are not substantially different from those already pleaded in the answer on file.247 It is not an abuse of discretion to permit an answer to be amended after the jury is impaneled, where it does not appear that the plaintiff was taken by surprise, or suffered any injury therefrom;248 or to allow an answer to be amended at the trial after the introduction of testi allegation of partnership, Bogart v. Crosby, 91 Cal. 278, 27 Pac. 603. Amendment of allegations of creditors' bill. Perea v. De Gallegos, 3 N. Mex. 151, 3 Pac. 246. Amendment of complaint in action by assignee of promissory note. Brisbois v. Lewis, 9 Colo. 494, 13 Pac. 179. 242 Hunter v. Bryant, 98 Cal. 247, 33 Pac. 51. 243 Een v. Lewison, 88 Cal. 253, 26 Pac. 109. 244 Turner v. Hamilton, 13 Wyo. 408, 80 Pac. 664. 245 Pryor v. Walkerville, 31 Mont. 618, 79 Pac. 240. 246 Gould v. Stafford, 101 Cal. 32, 35 Pac. 429. 247 Heilbron v. Kings River Canal Co., 76 Cal. 11, 17 Pac. 933; Duff v. Duff, 101 Cal. 1, 35 Pac. 437. See Dorn v. Baker, 96 Cal. 206, 31 Pac. 37. 248 Beronio v. Southern Pacific R. R. Co., 86 Cal. 415, 21 Am. St. Rep. 57, 24 Pac. 1093. See Jorgenson v. Butte Commercial Co., 13 Mont. 288, 34 Pac. 37. mony, where the same is allowed upon terms, and no objection is made that it was without notice.249 Amendments to the answer to enable the defendant to prove facts which will constitute a defense to the plaintiff's demand should be allowed, and if by reason of such amendments the court is satisfied that the plaintiff is taken by surprise, and requires further time to meet the defense, it can continue the case, and impose such terms as will compensate the plaintiff for the expense and delay caused thereby 250 Where no cross-complaint was filed, or affirmative relief sought until after the case had been tried, and it appeared that the case had been pending some three or four years, it was not an abuse of discretion to refuse to allow the filing of a crosscomplaint asking affirmative relief.251 It is within the discretion of the trial court to allow the filing of an amended answer upon the merits by the defendant, after a finding against him upon his answer setting up the pendency of another suit between the parties in relation to the same subject-matter.252 A defendant may amend an answer which has been demurred to before trial of the issue of law, as of course and without entry of an order permitting it, provided he serves the opposite party with notice and copy of the amendment, as required by the Colorado statute.2 Refusal of leave to file an amended answer is not error, when the motion therefor is made on the eve of the trial, and the jury is in attendance, and especially when the case is afterwards tried as if all the matters set forth in the amended answer were pleaded.25 And the erroneous refusal to allow an amendment to the answer becomes immaterial if the defendant was allowed to introduce all the evidence which he could have introduced under the proposed amendment, and such evidence shows no defense.255 Refusal to allow the defendant to amend 253 249 Publishing Co. v. Fisher Co., 10 Utah, 147, 37 Pac. 259. 250 Guidery v. Green, 95 Cal. 630, 30 Pac. 786. See Culverhouse v. Crosan, 94 Cal. 544, 29 Pac. 1100; Skagit etc. Lumber Co. v. Cole, 2 Wash. 57, 25 Pac. 1077; Storch v. McCain, 85 Cal. 304, 24 Pac. 639. 251 Kendall v. Lincoln Hardware etc. Co., 10 Idaho, 13, 76 Pac. 992. 252 State V. Superior Court, 9 Wash. 366, 37 Pac. 454. Amending answer by setting up the pendency of another action involving the same cause of action. Courbrough V. Adams, 70 Cal. 374, 11 Pac. 634. Amendment allowing the introduction of written evidence by the defendant. Hart v. Pritish etc. Ins. Co., 80 Cal. 440, 22 Pac. 302. 258 McDonald v. Hallicy, 1 Colo. App. 303, 29 Pac. 24. Further amendment of answer during second trial. McPherson v. Weston, 85 Cal. 90, 24 Pac. 733. 254 Shadburne v. Daly, 76 Cal. 355, 18 Pac. 403. 255 Southern Pacific R. R. Co. v. his answer after the plaintiff's testimony has been introduced is not an abuse of the court's discretion.256 And refusal to allow a defendant to file an amended answer setting up matters which could be proved under the averments of the original answer is not erroneous.257 When a new answer is filed the former answer is in effect withdrawn, and ceases to be a part of the record, and all motions and demurrers relating thereto accompany it.258 259 § 806. Amendment of demurrer.-A defendant, after filing a demurrer to the complaint, and before the trial of the issues of law thereon, has a right as of course to file an amended demurrer. Section 4429 of the Revised Statutes of Idaho, relating to the amendments of pleading, is sufficient to authorize the court, on proper showing, to permit the withdrawal of an amended cross-complaint and the filing of an amended demurrer to the complaint.200 And so long as judgment has not been entered on an order sustaining a demurrer, the court has jurisdiction to permit amendments, either to the complaint or to the demurrer.20 261 § 807. Amendment-Relief against mistake. The discretionary power of the court conferred by section 473 of the California Code of Civil Procedure extends to relief against a mistake in any respect, whether the obstruction to the disposition of cases upon their substantial merits be a mistake of fact or a mistake as to the law. The fact that the proposed amendment is based mainly upon a mistake of law is immaterial, though it may be that the court should require a stronger showing to justify relief from the effect of a mistake in law than in case of a mistake as to matter of fact.20 262 Purcell, 77 Cal. 69, 18 Pac. 886. See, also, Peck v. Rees, 7 Utah, 467, 27 Pac. 581, 13 L. R. A. 714. 256 Price v. Scott, 13 Wash. 574, 43 Pac. 634. 257 Edgar v. Stevenson, 70 Cal. 286, 11 Pac. 704. See Wixon v. Devine, 91 Cal. 477, 27 Pac. 777. Amendment of answer upon trial in an action for a dissolution and accounting of an alleged partnership. Guidery V. Green, 95 Cal. 630, 30 Pac. 786. 258 Wells v. Applegate, 12 Or. 208, 6 Pac. 770; Hexter v. Schneider, 14 Or. 184, 12 Pac. 668. 259 Cal. Code Civ. Proc., § 472; Hedges v. Dam, 72 Cal. 520, 14 Pac. 133; Perrin v. Mallory, 8 Ariz. 404, 76 Pac. 476. 260 Murphy v. Russell, 8 Idaho, 133, 67 Pac. 421. 261 Dent v. Superior Court, 7 Cal. App. 683, 95 Pac. 672. 262 Ward v. Clay, 82 Cal. 502, 23 Pac. 50; Gould v. Stafford, 101 Cal. 32, 35 Pac. 429. § 808. Amendment of affidavits.-Amendments of defects in affidavits are liberally allowed in most of the states.263 Under the California statute, 263a the trial court has power, in the exercise of its discretion, to allow an insufficient affidavit of merits, which has been filed in due time, upon a motion to change the place of trial, to be amended after the time for filing the original affidavit has expired, and the filing of the amended affidavit relates back to the time of the filing of the original affidavit.264 An affidavit in attachment which is merely defective may be amended the same as any other pleading in the case.265 § 809. Amendment on appeal from justice's court.-Under the Oregon practice,265a the circuit court can try nothing but the issues made up in the justice's court, and has no authority on appeal to allow any change to be made in the issues, as by filing an answer.266 Though a superior court may, on its own motion, award a certiorari to a justice's court to correct a transcript on appeal, when an inspection thereof discloses that important parts of the record have been omitted, yet the general rule is that it will not do so if, through neglect of appellant, the transcript does not show affirmatively the grounds of error on which he intends to rely.207 § 810. Practice on amendments. An amended complaint may be filed without prejudice to an injunction issued on the original complaint.268 If the complaint is amended, a copy of the amendments must be filed, or the court may in its discretion require the complaint as amended to be filed, and a copy of the amendments to be served upon the defendants affected thereby. The defendant must answer in such time as may be ordered by the court, and judgment by default may be entered upon failure to answer as in other cases.29 The provision of section 432 of the California code requiring an amended complaint to be served on the defend 263 See Avery v. Good, 114 Mo. 290, 21 S. W. 815; Reese v. Walker, 89 Ga. 72, 14 S. E. 888; Green v. Boon, 57 Miss. 617; Stone v. Miller, 60 Iowa, 243, 14 N. W. 781; Cusick's Appeal, 136 Pa. St. 459, 20 Atl. 574, 10 L. R. A. 228; McKichan v. Follett, 87 Ill. 103. 263a Cal. Code Civ. Proc., § 473. 264 Palmer v. Barclay, 92 Cal. 199, 28 Pac. 226. See Burnham v. Hays, 3 Cal. 115, 58 Am. Dec. 389. 265 Reister v. Land, 14 Okla. 34, 76 Pac. 156. 265a Hill's Code, §§ 581, 2130; Or. B. & C. Codes, §§ 593, 2263. 266 Forbis v. Inman, 23 Or. 68, 31 Pac. 204; Currie v. Southern Pacific Co., 21 Or. 566, 28 Pac. 884. 267 Hager v. Knapp, 45 Or. 512, 78 Pac. 671. 268 Barber v. Reynolds, 33 Cal. 497. 269 Cal. Code Civ. Proc., § 432. ants affected thereby has reference to amendments made after the parties have been brought into court, and does not require a mode of service of summons differing from other cases.270 An objection that an amended complaint was served on the defendants personally, and not on their attorneys, must be taken in the lower court by motion, and, in the absence of such motion, the appcllate court will not reverse a judgment against the defendants for such merely technical error.271 If the time for answer is not fixed, then the defendant should answer within the same time required in case of service of the original complaint.272 When a demurrer to a pleading is sustained, the adverse party shall have ten days from service of notice of the entry of the order in which to amend the pleading demurred to, and to file and serve such amended pleading. The party whose demurrer has been sustained shall have ten days from such service in which to answer or demur to such amended pleading. The court may impose such terms as it may deem proper on granting leave to file such amended pleadings.278 It is within the discretion of the court to limit to only twenty-four hours the time in which to file an amended complaint.274 In cases where the right to amend any pleading is not of course, the party desiring to amend, together with the notice of application to amend, shall serve an engrossed copy of the pleading, with the amendment incorporated therein, or a copy of the proposed amendment, referring to the page and line of the pleading where the amendment is to be inserted, and, if the pleadings were verified, shall verify such amended pleading, or such proposed amendment, before the application shall be heard. No pleading shall be amended by verifying the same when the original was not verified. So when defendant is allowed time to answer until plaintiff elects upon which count of the complaint he will go to trial, the plaintiff should serve a copy of complaint with the notice of his election.275 In New York, the defendant in an action has the right to serve an amended answer within twenty days after the service of the original, and to include therein a new defense, and this without 270 Dowling v. Comerford, 99 Cal. 204, 33 Pac. 853. 271 Campbell v. West, 93 Cal. 653, 29 Pac. 219. 272 People v. Rains, 23 Cal. 128. 278 See Cal. Code Civ. Proc., § 476; Forni v. Yoell, 99 Cal. 176, 33 Pac. 887; Elder v. Spinks, 53 Cal. 293; 274 Schultz v. McLean, 109 Cal. 437, 42 Pac. 557. 275 Willson v. Cleaveland, 30 Cal. 192. |