regard to the nature of the defense.276 Under the code, it is the practice, where a party amends his pleadings, either of course or after obtaining consent or leave, to serve a new pleading; and it supersedes the original. It is the practice, too, to designate it on its face as an amended complaint or answer, as the case may be; though it has been held that the omission to designate it does not render it void.277 Where amendments are made without authority, a motion to strike them out can be made at any time.278 As a general rule, a party cannot judge for himself of the sufficiency of a pleading, or of the materiality of an amendment, but must bring the question before the court. But when an amended pleading, in which the amendments are clearly frivolous or immaterial, is served immediately before the circuit, and obviously for the mere purpose of delay, it may be disregarded.279 Where the court has allowed the plaintiff, after the defendant has filed a plea in abatement, to amend his writ and declaration to meet the case presented by the plea, the defendant who has appeared for the purpose of pleading in abatement only is thereby put out of court; and a judgment by default may be rendered against him if he fail to appear again and plead to the action.280 § 811. The same-Continued. The statutes allowing amendments should be liberally construed;281 and it is not necessary that mistakes be mutual.282 The relief may be invoked, even though the party was present at the trial.283 To authorize the allowance of any amendment, except one which is merely formal, there should be an affidavit showing good cause.284 Without a showing of good cause by affidavit, the allowance of an amend ment of a demurrer to a complaint by which the statute of limita tions is interposed as a bar to the action, is erroneous.285 S where the defendant desires to amend a verified answer by cor 276 McQueen v. Babcock, 3 Keyes, 428. 277 Hurley V. Second Building Assoc., 15 Abb. Pr. 206, note. 278 Church v. Syracuse Co., 32 Conn. 372. 279 Vanderbilt v. Bleeker, 4 Abb. Pr. 289. 280 Randolph v. Barrett, 16 Pet. 138, 10 L. Ed. 914. 281 Milde v. Reynolds, 129 Cal. 308, 61 Pac. 932; Nicoll v. Weldon, 130 Cal. 666, 63 Pac. 63. P. P. F. Vol. I-32 282 Palace Hardware Co. v. Smit, 134 Cal. 381, 66 Pac. 474. 283 Bernheim v. Cerf, 123 Cal. 1' J, 55 Pac. 759. 284 Garrison v. Goodale, 23 Or. 307, 31 Pac. 709; People v. Barton, 4 Colo. App. 455, 36 Pac. 299; Canfield v. Bates, 13 Cal. 606. See Wabash etc. R. R. Co. v. Morgan, 132 Ind. 430, 31 N. E. 661, 32 N. E. 85; Caldwell v. Meshew, 53 Ark. 263, 13 S. W. 761. 285 People v. Barton, 4 Colo. App. 455, 36 Pac. 299. tradicting certain portions thereof, he should by his affidavit in support of the motion explain why he swore to the statements in the original answer, if they were not true.286 Where a party desires to amend his pleadings by withdrawing a damaging admission, the application for leave to do so should be made the instant the error is discovered, and a broad, substantial showing of mistake is essential to entitle him to relief in the premises.287 The court may affix conditions to whatever order it makes in response to an application to amend, and, unless its discretion in this particular has been abused, error cannot be predicated on its action.288 Adequate terms should be enforced, not merely as a matter of justice to the parties, but to the end that there may be more diligence in the preparation of causes, and the public business be thereby expedited.289 As a general rule in ordinary cases, the party amending his pleading will be required to pay all taxable costs up to the time of amending, and also costs for opposing the motion.200 § 812. Right to answer amended pleadings. The right to answer an amended pleading is one of which a party cannot be deprived, even after entry of default against him on the original pleading. The amendment of a pleading in matter of substance opens the default on the original pleading, and the amended pleading must be served upon a defaulting defendant.291 813. Statement in order.-An order granting leave to amend generally, without specifying in what particular, is improvident.292 § 814. Statement in motion. Motions to strike out must specifically point out the objectionable matter.293 Motions to strike out immaterial portions of the pleadings are not parts of 286 Barton v. Laws, 4 Colo. App. 212, 35 Pac. 284. 287 Buno v. Gomer, 3 Colo. App. 456, 34 Pac. 256. 288 Miller v. Thorpe, 4 Colo. App. 559, 36 Pac. 891. See McHenry v. Grant, 84 Wis. 311, 54 N. W. 626; Bausch v. Ingersoll, 61 Hun, 627; 16 N. Y. Supp. 336; Culverhouse V. Crosan, 94 Cal. 544, 29 Pac. 1100; Burns v. Scooffy, 98 Cal. 271, 33 Pac. 86; Stallings v. Barrett, 26 S. C. 474, 2 S. E. 483. 289 Saint v. Guerrerio, 17 Colo. 448, 31 Am. St. Rep. 320, 30 Pac. 335. 290 Smith v. Dragert, 65 Wis. 507, 27 N. W. 317; Coleman v. Davis, 13 Colo. 98, 21 Pac. 1018. 291 Reinhart v. Lugo, 86 Cal. 395, 21 Am. St. Rep. 52, 24 Pac. 1089. 292 Thompson v. Malone, 13 Rich. L. 252. 293 People v. Empire etc. Min. Co., 33 Cal. 171. the judgment-roll. They are no part of a record on appeal, unless made so by a statement.294 It is not error to allow a motion for a new trial to be amended after it is made.295 § 815. Irrelevant pleading defined.—A pleading is irrelevant which has no substantial relation to the controversy between the parties to the action.296 It includes prolixity or needless details of material matter.297 An amendment changing the nature of the action cannot be objected to by way of answer setting up such change as a defense, and such answer may be stricken out as irrelevant.298 Matter contained in an amended complaint is not irrelevant or redundant to a cause of action set out in the original complaint in the same action. 299 § 816. Amendment of undertaking. The amendment of an undertaking in attachment was not authorized by statute,800 but the California legislature of 1909 granted the privilege to amend the writ of attachment, or the affidavit, or undertaking upon which the writ is based any time at or before the hearing of an application for a discharge of the writ.300 § 817. What may be stricken out.-Sham and irrelevant answers, and irrelevant and redundant matter, inserted in a pleading, may be stricken out on such terms as the court may in its discretion impose.301 Redundant or irrelevant pleadings may be objected to by motion, but not by demurrer.302 An answer which is evasive, frivolous, and largely made up of legal conclusions, may be properly stricken from the files on motion.303 A motion by the defendant to strike out certain portions of the plaintiff's complaint as irrelevant and redundant was granted, with leave also to the plaintiff "to amend his summons and complaint as he should be advised." The plaintiff thereupon amended his sum 294 Sutter v. City and County of San Francisco, 36 Cal. 112. 295 Kreielsheimer V. Nelson, 31 Wash. 406, 72 Pac. 72. 296 Seward v. Miller, 6 How. Pr. 313. 297 Lee Bank v. Kitching, 11 Abb. Pr. 435; Russ v. Brooks, 4 E. D. Smith, 644. 298 Wheeler v. West, 78 Cal. 95, 20 Pac. 45. 299 Nevada County etc. Canal Co. v. Kidd, 28 Cal. 673. 300 Tibbett v. Sue, 122 Cal. 206, 54 Pac. 741. 300a Cal. Code Civ. Proc., § 558, as amended March 10, 1909, Statutes of 1909, p. 253. 801 Cal. Code Civ. Proc., § 453. 15 Pac. 331. See Isaacs v. Holland, 4 mons in pursuance of such leave, and at the same time gave notice of his election not to amend his complaint under the leave given. The defendant thereupon answered the complaint; and within twenty days after receiving such answer, the plaintiff served an amended complaint. It was held that the plaintiff was entitled to amend the complaint again of course, after defendant had thus answered.304 It seems that the right to move to strike out an answer for irrelevancy, and the right to demur to an answer for insufficiency, were not designed for the same purpose; and it is not optional with the plaintiff whether he will resort to a demurrer or to a motion to test the sufficiency of the answer. 305 If irrelevancy is not palpable, it should not be stricken out, but demurrer will lie.306 Irrelevant matter in a complaint may be stricken out on motion;307 or immaterial matter;308 or averments of deraignments of title;309 or superfluous matter, when inserted by itself,310 such as the name of plaintiff's wife;311 and, in general, every fact not essential to a claim or defense.312 If a copy of a written contract sued on be attached to the complaint, and the averments of the complaint put a false construction of law upon the terms of the contract, such averments may be regarded as surplusage.313 Allegations in the complaint which are absurd or impossible may be stricken out.314 Where the facts stated in the complaint constitute a sufficient cause of action, other unnecessary matter may be stricken out, and demurrer will not lie. But an entire pleading cannot be stricken out as irrelevant or redundant.315 To strike out a pleading which is susceptible of being amended by a statement of facts known to exist, and which constitute a cause of action or defense, is a harsh proceeding, and 304 Ross v. Dinsmore, 12 Abb. Pr. 4. 305 Littlejohn v. Greeley, 13 Abb. Pr. 311. 306 Id.; Struver v. Ocean Ins. Co., 9 Abb. Pr. 23; Waddell v. Cook, 2 Hill, 47; Littlejohn v Greeley, 22 How. Pr. 345. See, however, Lee Bank v. Kitching, 11 Abb. Pr. 439. See, also, as to notice, Bailey v. Lane, 13 Abb. Pr. 354; and as to pendency of motion, Kellogg v. Baker, 15 Abb. Pr. 286. 307 Green v. Palmer, 15 Cal. 411, 76 Am. Dec. 492; Bowen v. Aubrey, 22 Cal. 566. 308 Larco v. Casaneuava, 30 Cal. 560. 309 Id.; Willson v. Cleaveland, 30 Cal. 192. 310 Boles v. Cohen, 15 Cal. 150. 811 Warner V. Steamship Unele Sam, 9 Cal. 697. 312 Green v. Palmer, 15 Cal. 411, 76 Am. Dec. 492. 313 Stoddard v. Treadwell, 26 Cal. 294. 314 Sacramento County v. Bird, 31 Cal. 67. 315 Benedict v. Dake, 6 How. Pr. 352. But see Cal. Code Civ. Proc., § 453. 316 should only be resorted to in extreme cases. Where the answer contains several defenses, some of which are verified and others not, it is not error to strike out the unverified portion of the answer, with leave to defendants to further answer as to such portion, if they should so desire.317 § 818. Election between counts.-When the defendant is allowed time to answer until the plaintiff elects on which count of the complaint he will go to trial, the plaintiff should serve a copy of the complaint, with the notice of his election.818 § 819. Statement in motion.-A plaintiff may, on one motion, ask: 1. To strike out defenses as sham and irrelevant; 2. For judgment on a demurrer as frivolous; 3. To strike out irrelevant and redundant matter; 4. To have the allegations made definite and certain.319 The proper mode of taking advantage of defects in an answer which improperly blends and defectively states matters set forth therein is by motion to strike out either the whole of it or such parts as are defectively pleaded.320 § 820. Cost-bill. Whether or not a party is entitled to amend a cost-bill, he must make a showing of excuse on grounds mentioned in section 473 of the California Code of Civil Procedure.321 § 821. Ambiguous answer. If an answer is ambiguous, and does not sufficiently disclose the particulars of a transaction relied on as a defense, the plaintiff's remedy is by motion, under section 546 of the New York Code of Civil Procedure, to make the answer more definite and certain. He cannot accept the plea and go to trial upon it, and then interpose the objection for the first time that it is not sufficiently descriptive of the particulars relied on. In California, under subdivision 3 of section 444 of the Code of Civil Procedure, demurrer would lie in such a case. 322 § 822. Answer with denials only. Although a general denial to the allegations of the complaint may, if falsely pleaded, be 316 Burns v. Scooffy, 98 Cal. 271, 33 Pac. 86. And see Hatch v. Tacoma R. R. Co., 6 Wash. 1, 32 Pac. 1063; Walter v. Fowler, 85 N. Y. 621. 317 Nichols v. Jones, 14 Colo. 61, 23 Pac. 89. 318 Willson v. Cleaveland, 30 Cal. 192. 319 People v. McCumber, 15 How. Pr. 186, 18 N. Y. 315, 72 Am. Dec. 515. 820 Kinney v. Miller, 25 Mo. 576. 321 Galindo v. Roach, 130 Cal. 389, 62 Pac. 597. 322 Farmers' etc. Bank v. Sherman, 33 N. Y. 69. |