2996 Allegations not controverted taken as true. Each material allegation of the complaint not controvered by the answer, and each material allegation of new matter in the answer not controverted by the reply, where a reply is required, must, for the purposes of the action, be taken as true. But an allegation of new matter in the answer to which a reply is not required, or of new matter in a reply, is to be deemed controverted by the adverse party. $ 3248*.

2997. Material allegation defined. A material allegation in a pleading is one essential to the claim, or defense, and which could not be stricken from the pleading without leaving it insufficient. [C. L. § 3249.

2998. Supplemental complaint, answer, and reply. Either party may be allowed to make a supplemental complaint, answer, or reply, alleging facts material to the case, which have happened, or have come to his knowledge, since the filing of the former pleading; nor shall such new pleading be considered a waiver of former pleadings. [C. L. § 3250*.

2999. Pleadings after complaint to be filed and served. All pleadings subsequent to the complaint must be filed with the clerk and copies thereof served upon the adverse party or his attorney. [C. L. § 3251.

3000. Corporate, partnership, etc., capacity pleaded generally. A plaintiff suing as a corporation, partnership, executor, guardian, or in any other

way implying corporate, partnership, representative, or other than individual capacity, need not state the facts constituting such capacity or relation, but may aver the same generally, or as a legal conclusion, and where a defendant is held in such capacity or relation a plaintiff may aver such capacity or relation in the same general way.

Iowa, McClain's An. C. ? 3923.

CHAPTER 17.

VARIANCE, MISTAKES IN PLEADINGS, AND AMENDMENTS.

3001. Variance not prejudicial deemed immaterial. Amendment. No variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a party has been so misled, the court may order the pleading to be amended, upon such terms as may be just. [C. L. § 3252.

Cal. C. Civ. P. 469.

Liberal construction of pleadings and of statutes, 72 2489, 2986. Errors and defects not affecting substantial rights disregarded. ?? 3008, 3285.

Difference between pleading and proof of date of appropriating water held immaterial. Holman v. Pleasant Grove City, 8 U. 78; 30 P. 72. Same ruling of difference in time of consideration of promissory note. Brown v. Pickard, 4 U. 292; 9 P. 573; 11 P. 512. Variance which ought not to have misled appellant will not justify reversal. BullionBeck & Champion Mining Co. v. Eureka Hill

Mining Co., 5 U. 3; 11 P. 515. Farnsworth v. Holderman, 3 U. 381; 4 P. 337. The doctrine that a trespass alleged to have been committed on a certain day cannot be shown to have been committed on another day, does not obtain here. Burnham v. Call, 2 U. 433. For instance of variance in ejectment held not to be fatal, see Duke v. Griffith, 9 U. 469; 35 P. 512. In a suit in equity for relief on the ground of fraud, it is enough if the facts found are not materially and substantially different from those alleged in the bill. Tufts v. Tufts, 123 U. S. 76; same case, 3 U. 361, 3 P. 390.

Where the variance is not

3002. Order, if variance immaterial. material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs. [C. L. § 3253.

Cal C. Civ. P. 470.

Allowance of amendments immaterial or con

Jones, 7 U. 462; 27 P. 580.

Clerical mistake in name of plaintiff may be corrected. Greenfield v. Wallace, 1 U. 188.

forming allegations to proofs not error. Walton v. 3003. Failure of proof distinguished from variance. Where, however, the allegation of the claim or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections, but a failure of proof. [C. L. § 3254.

Cal. C. Civ. P. 471.

Plaintiff in ejectment alleging legal title cannot show equitable title. Tarpey v. Deseret Salt Co., 5 U. 205; 14 P. 338. Complaint alleged as breach of contract defendant's having put it out of his power to perform: proof showed he had repudiated and refused to perform; held, a fatal variance. Vance v. Whalon, 7 U. 44; 24 P. 672. Plaintiff cannot recover where the complaint alleges a contract of insurance, and the evidence shows an agreement to execute an insurance policy in futuro. Idaho

Forwarding Co. v. Fireman's Fund Insurance Co., 8 U. 41; 29 P. 876. Where complaint alleged that defendants erected and maintained dams across the outlet of a lake, thus preventing natural flow of water, and causing it to rise and damage his land, and the proof showed the dams were erected under license from plaintiff, permitting the raising of the water to a certain height, but that they were so erected as to raise it to a greater height, thus causing the overflow and damage alleged; held, a fatal variance. Peay v. S. L. City, 11 U. 331; 40 P. 206

3004. Amendments as of course. If demurrer overruled, facts deemed denied. Pleading over. Any pleading may be amended once by the party as of course, and without costs, at any time before the time for pleading to it has expired, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, who may have ten days thereafter in which to answer, reply, or demur to the amended pleading. A demurrer is not waived by filing an answer or reply at the same time; and when the demurrer to a complaint or counterclaim is overruled and there is no answer or reply filed, the court may, upon such terms as may be just,

allow an answer or reply to be filed. If a demurrer to the answer or reply be overruled, the facts alleged therein must be considered as denied to the extent mentioned in section twenty-nine hundred and ninety-six. [C. L. § 3255*.

Cal. C. Civ. P. ? 472.

Liberal amendments allowed in attachment proceedings, 3088. Time to amend or plead runs from service of notice, except, 3009. Service of

amendment to complaint, ? 2964. Service of papers generally, 3330-3337. May demur and answer at same time, 2 2963, 2972.

3005. Discretionary power of court as to amendments, defaults, mistakes, neglects, defendant not personally served, etc. 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 a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer, reply, 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 pleading or proceeding in other particulars; and may upon like terms allow an answer or a motion for new trial to be made and filed after the time limited by this code; and may, also, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; and when, for any reason satisfactory to the court, or the judge thereof, the party aggrieved has failed to apply for a new trial or other relief sought during the term at which such judgment, order, or proceeding complained of was taken, the court, or judge thereof in vacation, may grant the relief upon the application made within a reasonable time, not exceeding six months after the adjournment of the term. When, from any cause, the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action. Nothing but the actual, taxable costs of the action accruing, on and after the default, not including attorneys' fees, shall be imposed by the court under the provisions of this section authorizing the imposition of terms as a condition upon which relief is granted. [C. L. § 3256*; '92, p. 19*.

Cal. C. Civ. P. ¿ 473*.

Time allowed by law in which to plead, etc., may be extended. 3329.

AMENDMENTS ALLOWED. Insufficient verification may be amended. Milner v. Friel, 1 U. 186. Or verification added to unverified complaint. Ruffatti v. Lexington M. Co., 10 U. 386; 37 P. 591. Answer may be amended after introduction of evidence. Am. Pub. Co. v. Fisher, 10 U. 147; 37 P. 259. Amendment dismissing as to one defendant held not prejudicial. Brown v. Pickard, 4 U. 292; 9 P. 573; 11 P. 512. Amendment of complaint held not to dissolve attachment. Barton Bros. v. S. J. C. Merc. & Mfg. Inst'n, 10 U. 346; 37 P. 576. Amendment as to damages claimed held proper. Rhemke v. Clinton, 2 U. 230.

AMENDMENTS NOT ALLOWED. Amendment bringing in new parties without leave of court is improper, and should be stricken out. Salt Lake Co. & Territory of Utah v. Golding, 2 U. 319. It is not error to refuse to allow a defendant to amend his answer after the jury is sworn, and the examination of witnesses begun, when at a former term he had failed to amend knowing the trial court to hold such amendment necessary. Rhemke v. Clinton, 2 U. 230. Party having opportunity to amend before trial and failing to do so, may be refused leave at trial. Kelly v. Kershaw, 5 U. 295; 14 P. 804. Amendment striking out admission may be properly refused. Peck v. Rees, 7 U. 467; 27 P. 581. Where plaintiff sues for damages for fire caused by negligent handling of a locomotive, he cannot on the trial abandon this case, and, without amendment, recover under 2359, making railroads absolutely liable for such

fires irrespective of negligence. Davis v. Utah Southern Ry., 3 U. 218; 2 P. 521. An amendment to a cross-complaint was proposed at the trial totally changing the issue from suit on warranty to suit to reform a deed for mistake in description, no reason being given why amendment was not made before trial, and no showing of diligence or for delay made; held, refusal of such an amendment was not an abuse of the discretion of the court. Kelly v. Kershaw, 5 U. 295; 14 P. 804. Application to amend must first be made in lower court. Hussey v. Smith, 1 U. 304.

JUDGMENTS NOT VACATED. Facts held not to justify setting aside default. Crompton v. Crow, 2 U. 245. Negligence of attorney or reliance on promises of others, no ground. Id. Kuhn v. MeAllister, 1 U. 273. Meritorious defense must be shown. Kuhn v. McAllister, 1 U. 273. Where an agent of a foreign corporation fails to inform his principal of the commencement of a suit, and has no power himself to employ counsel to defend such action, the court will not set aside the default. Walker Bros. v. Continental Insurance Co., 2 U. 331. The fact that there was no time in which to prepare and file an answer, owing to the distant residence of defendant, furnishes no ground upon which to set aside judgment by default. Id. Judgment though erroneous, will not be vacated on motion made over one year after its rendition. Darke v. Ireland, 4 U. 192; 7 P. 714. But judgment void for lack of jurisdiction will be set aside upon motion, though after six months. Park v. Higbee, 6 U. 414; 24 P. 524. A final decree after a hearing on the merits cannot be amended or set aside after the term has ended and the time within which a motion for a

new trial may be made has passed; it can only be opened upon a bill of review or for fraud; but this rule does not apply to void decrees or clerical errors. Benson v. Anderson, 14 U. 334; 47 P. 142. Power of court to set aside judgment voidable on account of prior death of party against whom it was rendered, ceases after six months from adjournment of term. Elliott v. Bastian, 11 U. 452; 40 P. 713. Section 3400, C. L. 1888, et seq. have no application to a case where motion is made to set aside a judgment taken by default against a party in his absence on account of mistake or excusable neglect. Remedy in such case is under 3256, C. L. 1888. Thomas v. Morris, 8 U. 284; 31 P. 446.

JUDGMENTS VACATED. Facts held to justify setting aside default for inadvertence and excusable neglect. Nounnan v. Toponce, 1 U. 168. Thomas v. Morris, 8 U. 284; 31 P. 446. McCormick

Harvesting Machine Co. v. Marchant, 11 U. 68; 39 P. 483. A motion to vacate a final judgment is too late after the term, and after the time has expired within which a motion for a new trial can be made. Jones v. N. Y. Life Ins. Co., 14 U. 215; 47 P. 74.

MISCELLANEOUS. Motion may be made by real party in interest though not the nominal party of record. Thomas v. Morris, 8 U. 284; 31 P. 416.

The facts examined and held to show that the probate court had labored under a mistake, or was fraudulently imposed upon. Benson v. Anderson, 10 U. 135; 37 P. 256.

Terms cannot be imposed on sovereign. U. S. v. Stevens, 8 U. 3; 28 P. 869.

Action of trial court on motion to set aside default will not be disturbed, except for abuse of discretion. Walker v. Continental Ins. Co., 2 U. 331. Enright v. Grant, 5 U. 334; 15 P. 268.

3006. Officer sued for conversion may plead and prove value. When in an action to recover the possession of personal property, the person making an affidavit did not truly state the value of the property, and the officer taking the property or the sureties on any bond or undertaking, are sued for taking the same, the officer or sureties may in their answers set up the true value of the property, and that the person in whose behalf said affidavit was made was entitled to the possession of the same when said affidavit was made, or that the value in the affidavit stated was inserted by mistake, and the court shall disregard the value as stated in the affidavit, and give judgment according to the right of possession of said property at the time the affidavit was made. [C. L. $3256.

3007.

When

Defendant's name unknown, fictitious name used. the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceedceeding must be amended accordingly. [C. L. § 3257.

3008. Errors and defects not substantial, disregarded. The court must in every stage of an action disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect. $3258.

[C. L.

strued, 2 2489, 2986. Similar section, criminal procedure, 5080. Proceedings in attachment to be liberally construed, 3088.

3009. Time to amend, answer, etc., runs from service of notice. Exception. When a demurrer to any pleading is sustained or overruled and time to amend, answer, or reply is given, the time so given runs from service of notice of the decision or order, except when the party against whom the decision is made, or his attorney, is present and asks for and is given time to amend, answer, or reply, in which case no notice of the decision is required. § 3259*.

Cal. C. Civ. P. 2476*.

Amendment generally, 22 3004, 3005.

[C. L.

Section 3259, C. L. 1888, applies even when

defendant being in court had actual knowledge of order made. McCord & N. Mer. Co. v. Glenn, 6 U. 139; 21 P. 500.

CHAPTER 18.

ARREST.

3010. Arrest in civil action. No person shall be arrested in a civil action except an absconding debtor. [C. L. § 3260*.

Cal. C. Civ. P. 2 478*.

Authorized by Con. art. 1, sec. 16.

3011. Order, by whom made. An order for such arrest must be obtained from a judge of the court in which the action is brought. [C. L. § 3262. Cal. C. Civ. P. 2 480.

3012. Id. Made on affidavit showing cause. The order may be made whenever it appears to the judge by the affidavit of the plaintiff or of some other person, that a sufficient cause of action exists, and that the case is such as is mentioned in section three thousand and ten. The affidavit must be either positive or upon information and belief; and when upon information and belief, it must state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit must be filed with the clerk of the court. [C. L. § 3263.

Cal. C. Civ. P. 481.

3013. Undertaking of at least five hundred dollars. Before making the order, the judge must require a written undertaking on the part of the plaintiff, with sureties in an amount to be fixed by the judge, which must be at least five hundred dollars, to the effect that the plaintiff will pay all costs which may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful or without sufficient cause, not exceeding the sum specified in the undertaking. The undertaking must be filed with the clerk of the court. [C. L. § 3264.

defendant, 3181. Qualifications of sureties generally, 3493.

The

If action dismissed undertaking delivered to 3014. Order made at any time before judgment. Contents. order may be made at the time of the filing of the complaint, or at any time afterward, before judgment. It must require the sheriff of the county where the defendant may be found, forthwith to arrest him and hold him to bail in a specified sum, and to return the order at a time therein mentioned to the clerk of the court in which the action is pending. [C. L. § 3265.

Cal. C. Civ. P. 2483*.

The

3015. Copy of affidavit and order delivered to defendant. order of arrest, with a copy of the affidavit upon which it is made, must be delivered to the officer, who, upon arresting the defendant, must deliver to him a copy of the affidavit, and also, if desired, a copy of the order of arrest. [C. L. § 3266.

Cal. C. Civ. P. ? 484.

3016. Arrest, by whom and how made. The sheriff must execute the order by arresting the defendant and keeping him in custody until discharged by law. [C. L. § 3267.

Cal. C. Civ. P. 485.

3017. Defendant discharged on bail or deposit. The defendant, at any time before execution, must be discharged from the arrest, either upon giving bail or upon depositing the amount mentioned in the order of arrest. § 3268.

Cal. C. Civ. P. 2486.

[C. L.

3018. Id. Form of undertaking. The defendant may give bail by causing a written undertaking to be executed by two or more sufficient sureties, to the effect that they are bound in the amount mentioned in the order of arrest, that the defendant will at all times render himself amenable to the process of the