CHAPTER X. OF AMENDMENTS AND AS TO RELIEF FROM JUDGMENTS, ORDERS OR OTHER PROCEEDINGS TAKEN AGAINST A PARTY THROUGH HIS MISTAKE, SURPRISE OR Any pleading may be amended once by the party, of course, at any time before answer or demurrer filed, or after demurrer and before the trial of the issue of law thereon.1 The pleading as amended must be filed, and a copy thereof served on the adverse party, who may have ten days thereafter in which to answer or demur thereto.2 A plaintiff may amend his complaint without leave of the court at any time before the issuance of a summons, if there has been no appearance of the defendant in the action.3 Amendments by adding or striking out the name of a party or by correcting a mistake in any other respect, should be granted by the court on such terms as may be proper and just and the court, upon terms that may be just and proper, may enlarge the time to answer or demur. The court may also, and upon like terms in its discretion, and after notice to the adverse party, allow amendments in other particulars.* Courts should be liberal in allowing amendments to pleadings, to the end that cases may be fully and fairly presented on their merits.5 When the allowing of an amendment is a matter of discretion of the trial court, the Supreme Court will not interfere 1. Code of Civil Procedure, Sec. 472. 2. Code of Civil Procedure, Sec. 472; Lord v. Hopkins, 30 Cal. 76. 3. Allen v. Marshall, 34 Cal. 165. 4. Code of Civil Procedure, Sec. 473. 5. Hayden v. Hayden, 46 Cal. 337; Burns v. Scooffy, 98 Cal. 276. with the exercise of that discretion, unless the case be one of an abuse of discretion.6 A motion to amend is always in time when it immediately follows an objection to the sufficiency of the complaint or answer." An amended cross complaint may be permitted by the court, on notice to the adverse party, to be filed after the case had been submitted, in order that the allegations of the cross complaint may conform to the proofs.8 An amendment on such terms as may be just, should be permitted on the trial of an action to enable the party asking to amend, properly to present his case." When a complaint is amended, naming a person as a defendant who was not attempted to be named as a defendant in the original complaint, and who has not been served with a summons in the action, a judgment against such person by default is void unless he has made a general appearance in the action.10 When an amendment to a complaint is made by inserting therein the true name of a person who was sued by a fictitious name, and who was served with the summons in the action, service of the complaint as so amended or of the amendment is not necessary, and such service would not extend the time of such person to answer the complaint in the action.11 An amended pleading takes the place of the original,12 except so far as the plea of the statute of limitations is affected thereby, when the amended and original complaint state the same cause of action.13 If the amended complaint state a cause of action not stated in the original complaint, then, as to such new cause of action, not stated in the original complaint, the amended 9. Stringer v. Davis, 30 Cal. 318; Guidery v. Green, 95 Cal. 630; Farm 10. ers' G. Bank v. Stover, 60 Cal. 387. Powers v. Baily, 75 Cal. 237. 11. Brock v. Martinovich, 55 Cal. 516. 12. Collins v. Scott, 100 Cal. 453; Schneider v. Brown, 85 Cal. 205. complaint is to be deemed to be the commencement of the action, so far as the plea of the statute of limitations is affected thereby. 14 The amendment of a pleading in a matter of substance is a waiver of the default of a defendant for failure to answer the original pleading, and a copy of the amended pleading must be served on such defendant.15 The trial court has the same right to exercise its discretion in determining the time within which an answer or demurrer is to be filed to an amended pleading which it allows, as it has in determining whether it will allow such amended. pleading.16 The trial court, in the exercise of its discretion, may 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 be made therefor within a reasonable time, not exceeding six months after such judgment order or proceeding was taken.17 This power of the court should be liberally exercised.18 When from any cause the summons in an action has not been personally served on a defendant therein, 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.19 Application for permission to answer after a default for a failure to answer, should be accompanied by a copy of the proposed answer, which the applicant asks permission of the court to file, or by an affidavit of merits. The court should in every stage of an action disregard any error, improper ruling, instruction or defect in the pleading or proceedings which in the opinion of the court does not affect the substantial rights of the parties; and there shall be no presumption that any such error is prejudicial, or that injury has been done, if error is shown.20 14. Anderson v. Mayers, 50 Cal. 527. 19. Code of Civil Procedure, Sec. 473. 20 Code of Civil Procedure, Sec. 475, as amended in 1897. 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; and when it appears that such adverse party has been so misled, the court may order the pleadings to be amended on such terms as may be just.21 When the variance is not material, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs.22 But if the allegation of the claim or defense to which the proof is directed is unproved in its general scope or meaning, it is to be deemed a case of failure of proof, and not one of variance.23 21. Code of Civil Procedure, Sec. 469. CHAPTER XI. OF SOME RULES OF PLEADING UNDER THE CODE SYSTEM. I. The allegations in a pleading must be allegations of material ultimate facts, and not allegations of probative facts, of evidence, or of conclusions of law. 2. The denial in a pleading of evidence, of immaterial facts, or of conclusions of law, raises no issue of fact. 3. If the complaint be verified, the denial in the answer must be so specific that it is a denial of each and every part of the material allegations of the complaint, and the part of the material allegations in the complaint not so specifically denied is for the purpose of the action to be taken to be true. 4. Allegations in a complaint should be consistent. 5. A demurrer is an admission of the truth of the facts alleged in a pleading to which the demurrer is interposed. 6. When several defenses are alleged in an answer, and which are separately stated, an admission made in one of such defenses for the purpose of pleading a separate defense does not destroy the effect of a denial in another defense of the matter thus admitted.1 In personal actions the pleadings should allege a time when each traversable fact occurred, and when there is occasion to mention a continuous act, the period of its duration ought to be stated; the exact time as stated need not be established by the evidence, unless it is material. When a party to an action has occasion to justify under a writ, warrant or any other authority, he should set forth the authority in his pleading,3 It is not necessary to state matter in a pleading of which the 1. Siter v. Jewett, 33 Cal. 93. |
