because of disobedience of a subpoena duces tecum, where the disobedience is by an illiterate person, without the advice of counsel, and where defendant's counsel before the making of the order offer to admit everything that could be shown by the papers sought to be produced.3 The correctness of an order striking out a part of an answer is to be tested by reference to the state of the pleadings at the time it was made.367 366 369 § 831. When motion should be made.-An answer cannot be stricken out after issue joined. If an answer is filed, raising an issue or issues, and a trial is had, and witnesses are sworn and examined, and the court takes the case into consideration. it cannot then strike out the answer of the defendant and enter his default, and render judgment for plaintiff for the amount claimed in the complaint.868 An answer having been filed under leave of court, it is not competent for another judge to order it stricken from the files because not filed in apt time.3 Where certain material averments of the plaintiff's complaint were so defectively denied that, upon motion, such denials might properly have been stricken out as sham and irrelevant, yet, without such objection made thereto, the plaintiff introduced proof at the trial in their support, it was held that by introducing said proof the plaintiff waived all objection to the sufficiency of said denials, and the court properly refused an instruction to the jury, asked by the plaintiff, to the effect that the facts so averred were admitted to be true for all the purposes of said trial.970 Where a party sets up matter in his answer not recognized by law as a defense to the action, it may be taken advantage of at any time.371 If the defendant files his answer at the same time he does his demurrer, the court, after overruling the demurrer, has no right to strike out an answer which raises a defense, because the defendant fails to pay the plaintiff twenty dollars, required by a rule of court to be paid for the privilege of answering when a demurrer is overruled.37: Amending an answer waives error in striking the original from the files. 378 But it was held that 366 Frazer v. Lynch, 88 Cal. 621, 26 Pac. 344. 367 De Baker v. Southern Pacific R. R. Co., 106 Cal. 257, 39 Pac. 610. 368 Abbott v. Douglass, 28 Cal. 295. 369 Godding v. Live Stock Co., 4 Colo. App. 15, 34 Pac. 942. 870 Tynan v. Walker, 35 Cal. 634, 95 Am. Dec. 152. 871 Case v. Maxey, 6 Cal. 276; Macdougall v. Maguire, 35 Cal. 274, 95 Am. Dec. 98. 872 People v. McClellan, 31 Cal. 101. 873 Gale v. James, 11 Colo. 540. the filing of a substituted answer by the defendant did not operate as a waiver of his exception to an order striking out an affirmative defense in his original answer.874 § 832. Order not appealable.-Orders striking out immaterial portions of pleadings are not appealable.375 § 833. Mistakes in names, how corrected.-Mistakes in names of parties in a writ may be amended as a clerical misprision, even after the adjournment of the term, but the record itself must show the error. 376 But where there is a mistake in the Christian name of one of the plaintiffs throughout the proceedings, the court cannot amend the judgment upon evidence aliunde.377 A declaration in the name of a firm may be amended by inserting the names of the members of the firm.378 A corporate name may be substituted for an individual name.379 A formal variance, in suing a defendant by a wrong name, is amendable at any time.380 On a plea of misnomer, the court may allow the plaintiff to amend the writ and declaration.381 Leave to amend the writ by changing the name of one of the plaintiffs may be refused. 382 A complaint may, in furtherance of justice, and on such terms as may be proper, be amended by adding the name of a party plaintiff.383 And although an objection for misnomer of the plaintiff is waived by filing an answer to the merits, yet it is not prejudicial error for the court to order the filing of an amended complaint, after issue joined, where the complaint is 274 Schulte v. Littlejohn, 2 Wash. 129, 26 Pac. 79. 375 Sutter v. San Francisco, 36 Cal. 112; Briggs v. Bergen, 23 N. Y. 162; Beach v. Hodgdon, 66 Cal. 187, 5 Pac. 77. 376 Hegeler v. Henckell, 27 Cal. 491; Furniss V. Ellis, 2 Brock. Marsh. 15, Fed. Cas. No. 5162; Elliott v. Holmes, 1 McLean, 466, Fed. Cas. No. 4392; Gillett v. Robbins, 12 Wis. 319. 377 Albers v. Whitney, 1 Story, 310, Fed. Cas. No. 137; Jackson v. Warren, 32 Ill. 331; Johnson v. Adelman, 35 Cal. 265. But see Henckler v. County Court, 27 Ill. 39. 878 Tibbs v. Farrott, 1 Cranch C. C. 177, Fed. Cas. No. 14022. 379 Jackson v. Warren, 32 Ill. 331. Leave granted to correct the corporate name of the plaintiff. Corporation of Georgetown v. Beatty, 1 Cranch C. C. 234, Fed. Cas. No. 5344. See Cal. Code Civ. Proc., § 473. 380 Scull v. Briddle, 2 Wash. C. C. 200, Fed. Cas. No. 12570; Craig v. Brown, Pet. C. C. 139, Fed. Cas. No. 3326; Shinn v. Cummins, 65 Cal. 97, 3 Pac. 133; McDonald v. Swett, 76 Cal. 257, 18 Pac. 324. 381 Randolph v. Barrett, 16 Pet. 141, 10 L. Ed. 914; Nelson v. Barker, 3 McLean, 379, Fed. Cas. No. 10101. 382 Comegyss v. Robb, 2 Cranch C. C. 141, Fed. Cas. No. 3049. 383 Rawles v. People etc., 2 Colo. App. 501, 31 Pac. 941. 385 amended without any considerable delay or expense.384 Where a general leave to amend has been obtained, the plaintiff has a right to join other proper parties as defendants without special permission so to do.3 If a defendant sued under a wrong name discloses his true name in his answer, he cannot object to the court's giving leave, after the evidence is in, to amend the complaint accordingly.386 Where the plaintiff sued three persons as partners, and on the trial, by leave of court, amended his complaint by striking out the name of one of them, and dismissed as to him, it was held that the other defendants were not prejudiced by the amendment.387 § 834. Adding or striking out parties. The court may in furtherance of justice, and on such terms as may be proper, amend any pleading by adding or striking out parties.388 The court will take notice of the want of necessary parties, and will ordinarily allow an amendment on just terms.389 The refusal of a trial court to allow an amendment substituting entirelv new parties plaintiff is not such an abuse of discretion as would authorize the appellate court to interfere.390 Where an application to amend a complaint is made during the trial of the cause, and the amendment is such as to change the action from one against the defendant to an action against the defendant and another party jointly, a denial of such motion is not an abuse of discretion.391 § 835. Discretion. When the court perceives that necessary and indispensable parties are wanting,392 it may grant leave to amend and bring them in,393 in its discretion,394 and on such 384 Lee v. Lee, 3 Wash. 236, 28 Pac. 355. 385 Louvall v. Gridley, 70 Cal. 507, 11 Pac. 777. See Stewart v. Spaulding, 72 Cal. 264, 13 Pac. 661. 386 Ramsey v. Cortland Cattle Co., 6 Mont. 498, 13 Pac. 247. 387 Brown v. Pickard, 4 Utah, 292, 9 Pac. 573, 11 Pac. 512. 388 Cal. Code Civ. Proc., § 473; Heslep v. Peters, 3 Scam. 45; Jackson v. Warren, 32 Ill. 331; Curtis v. Sage, 35 Ill. 22; Hamill v. Ashley, 11 Colo. 180, 17 Pac. 502. 389 Beals v. Cobb, 51 Me. 348. 890 Liebman v. McGraw, 3 Wash. 520, 28 Pac. 1107. 391 Petterson v. Stockton & T. C. R. Co., 134 Cal. 244, 66 Pac. 304. 392 Mechanics' Bank v. Seton, 1 Pet. 299, 7 L. Ed. 152. 393 Harrison v. Rowan, 4 Wash. C. C. 202, Fed. Cas. No. 6143; Dwight v. Humphreys, 3 McLean, 104, Fed. Cas. No. 4216. 394 Van Epps v. Van Deusen, 4 Paige, 75, 25 Am. Dec. 516; Vanderwerker v. Vanderwerker, 7 Barb. 221; Greenleaf v. Queen, 1 Pet. 138, 7 L. Ed. 85. terms as may be prescribed.395 But such an amendment cannot be made without leave of court.3 396 But it has been held that an entire change of parties cannot be allowed on amendment.397 398 § 836. Motion, when made. Whether, after striking out a party from the pleadings, the court can reinstate him, quære. On motion for nonsuit at the trial, plaintiff may be allowed to amend complaint by adding the name of a co-plaintiff, on such terms as may be just, even after the close of plaintiff's testimony.400 The court may at any time allow an amendment by inserting the name of a firm, where an action is brought in the name of one partner only.401 § 837. Special cases. In an action of assumpsit against two defendants tried by the court, the plaintiff, after a verdict against him upon the ground that a joint promise was not proved, cannot amend by striking out one of the defendants.402 A suit may be amended by inserting the name of a partner of the firm.403 In suit by a sheriff, for the use of execution creditors, the complaint may be amended by adding other execution creditors. In ejectment, complaint may be amended by making new parties plaintiff.405 Or judgment creditors, as subsequent incumbrancers, may be made parties to the action.406 In a suit on a foreclosure of mortgage, the complaint may be amended by making the original vendor a party defendant.40% 404 § 838. Striking out parties.-The misjoinder of parties may be corrected by amendment.408 Such amendment may be made 395 Cal. Code Civ. Proc., § 473; Vanderwerker V. Vanderwerker, 7 Barb. 221. 396 Russell v. Spear, 5 How. Pr. 142. 397 Wright v. Storms, 3 N. Y. Code Rep. 138; Davis v. Schermerhorn, 5 How. Pr. 440; Vanderwerker V. Vanderwerker, 7 Barb. 221. 398 Beach v. Covillaud, 2 Cal. 237. 899 1 Van Santv. Pl. 134; Mechanies' Bank v. Seton, 1 Pet. 299, 7 L. Ed. 152; Acquital v. Crowell, 1 Cal. 191; Heath v. Lent, 1 Cal. 412; Farmer v. Cram, 7 Cal. 135; Browner v. Davis, 15 Cal. 9; Gavitt v. Doub, 23 Cal. 78; Valencia v. Couch, 32 Cal. 340, 91 Am. Dec. 589 400 Polk v. Coffin, 9 Cal. 56; Hurley v. Second Building Assoc., 15 Abb. Pr. 206, note. 401 Dixon v. Dixon, 19 Iowa, 512. 402 Griffin v. Simpson, 45 N. H. 18. 403 Stuart v. Corning, 32 Conn. 105. 404 Glenn v. Black, 31 Ga. 393. 405 Chapin v. Curtenius, 15 Ill. 427. 406 Horn v. Volcano Water Co., 13 Cal. 62, 73 Am. Dec. 569. As to effect of adding new parties, see Hurley v. Second Building Assoc., 15 Abb. Pr. 206, note; Elmore v. Vallette, 16 Abb. Pr. 249. 407 Roddy v. Elam, 12 Rich. Eq. 343. 408 Heath v. Lent, 1 Cal. 410; Beach v. Covillaud, 2 Cal. 237. so as to exclude parties irregularly included,409 even after judg ment rendered. 410 Plaintiffs may be allowed to amend before trial by striking out the name of one of the defendants.411 The court may allow an amendment of a complaint striking out the name of a plaintiff who was dead at the commencement of the suit. 412 The amendment of a complaint by striking out of the caption the names of certain of the defendants who were not proper parties, without filing an amended complaint, while not commendable as a method of amending, is without prejudice to other defendants who are properly parties.413 § 839. Striking out demurrer-Grounds of.-Under California practice, a demurrer cannot be stricken out for want of proof of service, if filed in time, and the only possible grounds of striking out such a demurrer is the insertion of irrelevant and redundant matter in it, as a pleading under section 53 of the Code of Civil Procedure, which cannot apply when it states only one or more of the grounds enumerated in section 430 of that code.* Under Oregon practice, a demurrer cannot be stricken out on motion.415 414 § 840. Complaint-Striking out evidentiary matter. It is proper to strike from a complaint the statement of matter which, though it may be proper to be shown in evidence upon the trial of the action, adds nothing to the ultimate and issuable facts alleged in the complaint.416 § 841. Striking out-Miscellaneous points of practice.-Where a complaint contains an immaterial averment which ought to have been stricken out on motion, but the party making such motion answered over, and the court made no declaration of law upon the trial respecting such immaterial averment, and it did not appear that the appellant was in any manner prejudiced by such error of the court in refusing to strike such imma 409 Mulliken v. Hull, 5 Cal. 246. 410 Browner v. Davis, 15 Cal. 9. 411 Bell v. Davis, 8 Barb. 210; Tobey v. Claflin, 3 Sumn. 379, Fed. Cas. No. 14066. 412 Jemison v. Smith, 37 Ala. 185. 413 Doane v. Houston, 75 Cal. 360, 17 Pac. 426. 414 Davis v. Honey Lake Water Co., 98 Cal. 415, 33 Pac. 270. 415 Cohen v. Ottenheimer, 13 Or. 220, 10 Pac. 20. See The Victorian, 24 Or. 121, 41 Am. St. Rep. 838, 32 Pac. 1040. 416 County of San Joaquin v. Budd, 96 Cal. 47, 30 Pac. 967. |