may give in evidence the mitigating circumstances.

March 11, 1872.

Cal.Rep. Cit. 82, 528; 107, 269.

Prac. Act, sec. 63. En. April 29, 1851.

Cal.Rep.Cit. 1, 195; 9, 536; 47, 258.

Libel and slander: See Civ. Code, secs. 44 et seq.

En.

§ 462. Allegations not denied, when to be deemed true. When to be deemed controverted. Every material allegation of the complaint, not controverted by the answer, must, for the purposes of the action, be taken as true; the statement of any new matter in the answer, in avoidance or constituting a defense or counterclaim, must, on the trial, be deemed controverted by the opposite party. En. March 11, 1872.

Cal.Rep.Cit. 56, 373; 57, 589; 65, 422; 84, 204; 88, 227; 89, 344; 92, 562; 104, 581; 107, 432; 117, 240; 119, 431; 119, 528; 119, 529; 119, 530; 120, 162; 122, 675; 124, 215; 125, 489; 127, 541; 131, 10; 132, 11; 132, 291.

Prac. Act, sec. 65.

82, 95; 82, 573; 94, 543; 97, 346; 119, 432; 119, 433; 122, 570; 122, 571; 128, 425; 128, 426;

En. April 29, 1851. Am'd. 1854, 60;

1860, 300; 1861, 494; 1862, 563; 1866, 703. Cal.Rep.Cit. 6, 200; 7, 262; 9, 62;

8, 149; 25, 197;

14, 93; 28, 244;

14, 509; 18, 314; 19, 34; 21, 350; 31, 195; 32, 456; 35, 29; 38, 585; 39, 177; 39, 259. Cross-complaint must be replied to: See ante, sec. 442. Answer: See, generally, ante, sec. 437. Material allegations: Post, sec. 463.

§ 463. A 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. En. March 11, 1872.

Cal.Rep.Cit. 84, 418.

Prac. Act, sec. 66. En. April 29, 1851.

Cal.Rep.Cit. 9, 500; 21, 350; 32, 456; 122, 164.

Immaterial allegations need not be answered: See sec.

462.

§ 464. Supplemental complaint and answer. The plaintiff and defendant, respectively, may be allowed, on motion, to

make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer. En. March 11, 1872.

Cal.Rep.Cit. 127, 633.

54, 504; 60, 249; 98, 337; 102, 623; 109, 121;

Prac. Act, sec. 67. En. April 29, 1851. Am'd. 1854, 60; 1860, 300; 1862, 563; 1866, 703.

Cal.Rep.Cit. 1, 175; 12, 439; 25, 587; 28, 672; 33, 501; 36, 110; 38, 541.

Amendments to pleadings: Post, secs. 472, 473.

§ 465. Pleadings subsequent to complaint must 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. En. March 11, 1872. Am'd. 1873-4, 301.

Cal.Rep.Cit. 60, 295; 67, 432; 114, 475; 136, 363.

Service of papers: Secs. 1011 et seq.

Amendment of pleadings, service of: Post, secs. 472; ante, 432.

Extending time to serve papers: See post, sec. 1054.

§ 472.

§ 473.

§ 474.

§ 475.

§ 476.

Amendments by the court. Enlarging time to plead and relieving from judgments, etc.

Suing a party by a fictitious name, when allowed.

No error or defect to be regarded unless it affects substantial rights.

Time to amend or answer, running of.

§ 469. Material variances, how provided for. No variance between the allegation 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. En. March 11, 1872. Am'd.

1873-4, 302.

Cal.Rep. Cit. 54, 441; 75, 362; 90, 261; 114, 348; 116, 332; 121, 172; 132, 401; 136, 72.

Prac. Act, sec. 579.

Cal.Rep. Cit. 31, 386.

59, 576; 65, 525; 72, 567; 74, 297; 94, 94; 95, 478; 98, 113; 102, 587; 116, 380; 116, 559; 119, 380; 120, 69; 134, 418; 135, 48; 135,

En. April 29, 1851.

Immaterial variance: Post, sec. 470.

87; 135, 569;

Variance and failure of proof: Post, sec. 471.
Immaterial errors, generally: See post, sec. 475.

§ 470. Immaterial variance, how provided for. Where the variance is not 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. En. March 11, 1872.

Cal.Rep. Cit. 57, 336; 59, 576; 65, 620; 75, 362; 85, 508; 106, 152; 116, 559; 121, 172; 121, 193; 130, 274; 132, 423; 132, 427.

Variance, material: Ante, sec. 469; fatal: Post, sec. 471.

§ 471. What not to be deemed a 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. En. March 11, 1872.

Cal.Rep.Cit. 59, 576; 69, 87; 121, 172; 132, 423; 132, 427.
Proof generally: Post, secs. 1824, 1869.

Proof, failure of-dismissal for: Post, sec. 581, subd. 5.

§ 472. Amendments of course, and effect of demurrer. Any pleading may be amended once by the party of course, and without costs, at any time before answer or demurrer filed, 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 or demur to the amended pleading. A demurrer is not waived by filing an answer at the same time; and when the demurrer to a complaint is overCode Civ. Proc.-15.

ruled, and there is no answer filed, the court may, upon such terms as may be just, allow an answer to be filed. If a demurrer to the answer be overruled, the facts alleged in the answer must be considered as denied to the extent mentioned in section 462. En. March 11, 1872. Am'd. 1873-4, 302.

Cal. Rep.Cit. 53, 294; 72, 521; 84, 218; 109, 121; 119, 72; 132, 424; 132, 427;

55, 516; 58, 94; 58, 97; 68, 616; 86, 399; 86, 605; 106, 60; 109, 72; 119, 108; 119, 304; 119, 413; 132, 423; 135, 480.

Complaint, amended-filing: Sec. 432.

Answer no waiver of demurrer: Ante, sec. 431.

§ 473. Amendments by the court. Enlarging time to plead and relieving from judgments, 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 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 to be made 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; provided, that application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. 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. When, in an action to recover the possession of personal property, the person making any affidavit did not truly state the value of the property, and the officer taking the property, or the sureties on any bond or undertaking, is sued for taking the same, the officer or sureties may in their answer 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, 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. En. March 11, 1872. Am'd. 1873-4, 302; 1880, 2.

101, 34; 101, 575; 102, 603; 102, 616; 102, 617; 103, 453; 103, 536; 104, 38; 108, 214; 108, 234; 109, 72; 109, 121; 109, 686; 109, 687; 109, 690; 110, 504; 112, 117; 113, 342; 115, 101; 116, 51; 116, 93; 116, 135; 116, 283; 116, 381; 118, 97; 118, 360; 118, 592; 119, 107; 119, 109; 119, 110; 119, 366; 119, 589; 120, 37; 121, 416; 121, 418; 121, 419; 122, 109; 122, 208; 122, 209; 123, 171; 123, 253; 123, 254; 123, 540; 124, 74; 124, 143; 124, 144; 125, 203; 126, 55; 126, 372; 127, 170; 128, 245; 128, 393; 128, 561; 129, 15; 129, 282; 129, 311; 129, 312; 130, 390; 130, 514; 130, 667; 131, 617; 132, 8; 132, 423; 132, 424; 132, 427; 134, 127; 134. 128; 134, 383; 134, 384; 136, 390; 137, 139; 138, 26; 138, 200; 138, 300; 138, 642.

§ 474. Suing a party by a fictitious name, when allowed. When 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