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2. The facts to be alleged in a supplemental pleading must relate to and be material to the original case.-Imperial Land Co. v. Imperial Irr. Dist., 173 Cal. 668, 161 Pac. 116.

3. It is not an abuse of discretion to refuse leave to the defendant at the commencement

of the trial to file a supple

mental answer in such action, setting forth facts showing that the land covered by the relinquishment in question was held by a false and fraudulent filing by another in the fictitious name of the plaintiff, in the absence of any reason shown why the same was not filed at an earlier date.-Lincoln v. Sibeck, 27 Cal. App. 61, 148 Pac. 967.

CHAPTER VIII.

VARIANCE-MISTAKE IN PLEADINGS AND AMENDMENTS.

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

§ 469.

1.

Amendment to meet variance.—A complaint which avers performance of a contract by the plaintiff is not sustained by evidence that the defendant waived performance. In such case, however, the court may, in the interest of justice, allow an amendment of the complaint to conform to the proofs.-Flickinger v. Wrenn Investment Co., 172 Cal. 132, 155 Pac. 627.

2. The court has the right and power to allow an amended complaint to be filed to conform with the proof, even after submission of the cause.-Sweet v. Richvale Land Co., 29 Cal. App. 111, 154 Pac. 608.

3. An amendment may always be made to conform to the proof, provided the cause of action is not thereby changed.-Koch v. Wilcoxon, 30 Cal. App. 517, 158 Pac. 1048.

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1. What not deemed a variance — Construction. In an action to recover for services rendered in making a sale of shares of corporate stock there is a "failure of proof" within the meaning of this section where the complaint alleged an agreement on the part of the defendants to pay plain-. tiff a specified sum of money for such services and the evidence showed that the contract was he was to accept a certain number of shares of stock in full compensation for the services.-Gillin v. Hopkins, 28 Cal. App. 579, 153 Pac. 724.

§ 472.

1.

Amendments of course-Effect of demurrer. Where the defendant interposed a frivolous demurrer and the court, overruling the same, permitted defendant to answer within five days "on the payment of ten dollars to the opposite party" and filed his answer without attempting to conform to the order, the court properly granted plaintiff's motion to strike out the answer and for judgment upon defendant's default.Pierce v. Avakian, 167 Cal. 330, 139 Pac. 799. 2. Liberality in the allowance of an amendment to a pleading is the rule rather than the exception; and in cases where an amendment can be made in furtherance of justice without jeopardizing the rights of an adverse party, it should be freely allowed.-Mackroth v. Sladky, 27 Cal. App. 112, 148 Pac. 978.

3.

The superior court has authority to deny a defendant the privilege to file an answer after he has interposed a demurrer and it has been overruled, the matter resting in the discretion of the court, subject to review in case of its arbitrary or unreasonable exercise.-Leavell v. Superior Court, 27 Cal. App. 191, 149 Pac. 372.

4. An amendment to any pleading after a demurrer is sustained thereto is a waiver of the right to object to any error in the sustaining of the demurrer.-Carter v. Canty, 28 Cal. App. 323, 152 Pac. 312.

5. Where the defendant files an amended pleading after the demurrer to the original pleading has been sustained and the case thereafter goes to trial and judgment, any error committed in sustaining the demurrer is waived.-Carter v. Canty, 28 Cal. App. 323, 152 Pac. 312.

ENLARGING TIME ΤΟ

§ 473. AMENDMENTS BY THE COURT. 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, 1917 Sup.-34.

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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;

[Time for application.] 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; and provided, further, that said application must be accompanied with a copy of the answer, or other pleading proposed to be filed therein, otherwise said application shall not be granted. 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.

[Action to recover personal property.] 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.

History: Enacted March 11, 1872, re-enactment, with additions, of § 68 of Practice Act; amended March 24, 1874, Code Amdts. 1873-4, p. 302; March 9, 1880, Code Amdts. 1880 (C. C. P. pt.), p. 2; May 5, 1917, Stats. and Amdts. 1917, p. 242. In effect July 27, 1917.

AMENDMENTS BY THE COURT.

1, 2. Construction of section.

3, 4. As to right to relief not being an absolute right.

5-12. -Matter of discretion of court. 13-19. As to time for application. 20-23. Affidavit of merits.

24-32. Grounds for relief.

33, 34. Mistake as to party defendant. 35-41. Relief from what.

42-51. The amendment.

52. 53-56.

Imposition of conditions.

Power of court to enter, correct or
modify judgment.

1. Construction of section. — Section 473 of the Code of Civil Procedure is inapplicable to proceedings to vacate judgments in justices' courts, as the same are governed by section 859 of such code.-Arbogast v. Superior Court, 32 Cal. App. 372, 162 Pac. 909.

2. Relief may be obtained under this section notwithstanding the fact that the judgment had been satisfied before the application for relief was made. -Patterson Keeney, 165 Cal. 465, Ann. Cas. 1914D 232, 132 Pac. 1043.

V.

3. As to right to relief not being an absolute right.-The right of a defendant who has not been served with summons to have his default opened is not absolute and unconditional. He must first make timely motion within a year; second, establish that he has a meritorious defense, and, third, comply with such reasonable terms as the court may impose in granting his motion. When all this has been satisfactorily done the right of the moving party becomes absolute and is not lost because the court postpones its decision on the motion until

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5.

-Matter of discretion of court.-The giving of the relief is discretionary with the trial court, and appellate courts will not reverse this decision in the absence of an abuse of discreton. Oppenheimer v. Radke, 165 Cal. 220, 131 Pac. 365.

6. Whether the application be granted or refused the discretion reposed in the trial court in an application for relief will not be disturbed by an appellate court unless there has been an abuse thereof.-Hole v. Takekawa, 165 Cal. 372, 132 Pac. 445.

7. An application under this section is addressed to the sound discretion of the trial court, and the exercise thereof will not be interfered with except an abuse clearly appears. Any doubt should be resolved in favor of the application in order to secure a trial upon the merits.-Savage v. Smith, 170 Cal. 472, 150 Pac. 353.

8. The power given by section 473 of the Code of Civil Procedure to relieve from defaults is to be liberally exercised with a view to bringing about a determination on the merits. Orders granting relief are to be set aside only where there has been manifest abuse of discretion.-Haviland

a

v. Southern Calif. Edison Co., 172 Cal. 601, 158 Pac. 328.

9. While it is generally true that the exercise of the power to set aside a judgment taken as a result of the alleged excusable neglect of one of the parties to the action is largely a matter of discretion, nevertheless, where the disclosed and undisputed circumstances attending the taking of the judgment are such as would naturally cause the lower court to hesitate in its decision of the motion to vacate, that discretion should be exercised so as to bring about a judgment upon the merits of the action. Where the plaintiff had in good faith endeavored to ascertain from the clerk of the court the condition of the cause on the court calendar and was honestly misled by the information he received, the neglect of the plaintiff was excusable within the meaning and intent of this section.Lynch v. de Boom, 26 Cal. App. 311, 146 Pac. 908.

10. While it is true that the exercise of the discretion is better exercised when it tends to bring about a decision on the merits, still the rule is that unless the record clearly shows that the trial court has abused its discretion, its order, whether it be to grant or deny the application, will be affirmed.-Morton V. Shannon, 26 Cal. App. 689, 147 Pac. 1179.

11. It is better to dispose of causes upon their substantial merits than with a strict regard to technical rules of procedure. The discretion of the court ought always to be exercised in such manner as will subserve rather than impede or defeat the ends of justice.-McMunn v. Lehrke, 29 Cal. App. 298, 155 Pac. 473.

12. Where a party in default makes seasonable application to be relieved therefrom, very slight evidence will be required to justify the court in setting aside the default. - Hagenkamp V. Equitable Life Assur., 29 Cal. App. 713, 156 Pac. 520.

13. As to time for application.-When the motion for relief is not made within the time limit the court can only grant it from an inspection of the judgment roll, and then only if such inspection showed that the judgment was void upon its face.-Lake v. Superior Court, 165 Cal. 182, 131 Pac. 371. 14. A person served by publication may come in at any time within a year and have the judgment set aside. Parkside Realty Co. v. MacDonald, 166 Cal. 426, 137 Pac. 21.

15. A father, who had been deprived of the custody of his minor child through the awarding by the court to the mother as a result of divorce proceedings, may obtain relief from an order in adoption proceedings to which the mother before her death had consented, but of which the father had no notice or knowledge, either by a timely motion in that proceeding, or by an independent action to set aside the order of adoption. The period of limitation within which relief must be sought begins to run from the date of the filing of the order of adoption.-Bell v. Krauss, 169 Cal. 387, 146 Pac. 874.

16. An appeal from a judgment must be dismissed for failure to file the transcript within the time prescribed by the rules of the supreme court, where the same is not filed within forty days after the expiration of the time allowed by section 473 of the Code of Civil Procedure for relief from defaults for failure to serve proposed bills of exceptions and statements on such an appeal within the time allowed by law.Cox v. Palos Verdes Co., 172 Cal. 702, 158 Pac. 332.

17. In an action to establish a trust and for an accounting, the interlocutory decree ordering the accounting and the final judgment entered upon the accounting are not subject to be set aside under section 473 of the Code of Civil Procedure, where no application for relief was made until nine months after the entry of the interlocutory decree, and the moving parties participated in the sessions of the commissioner, who took the accounting and sought a determination therein favorable to themselves.Glougie v. Glougie, 174 Cal. 126, 162 Pac. 118. 18. The superior court has jurisdiction to grant an application made by the defendant under section 473 of the Code of Civil Procedure to vacate an order setting aside an interlocutory judgment for divorce, where the application is made within six months after the making of the order.-Suttman v. Superior Court, 53 Cal. Dec. 84, 162 Pac. 1032.

19. The superior court has no jurisdiction, under section 473 of the Code of Civil Procedure, to grant a motion for relief from the failure to present for settlement a proposed statement and amendments thereto on motion for a new trial, where the default had continued for a period of more than six months after the time prescribed by section 650 of such code.-Van Cott v. Frank, 30 Cal. App. 450, 158 Pac. 505.

20. Affidavit of merits.-An affidavit of merits is necessary to a motion for relief on the grounds prescribed herein.-Parkside Realty Co. v. MacDonald, 167 Cal. 342, 139 Pac. 805.

21. An affidavit of merits is necessary to secure relief under this section.-Estate of Simmons, 168 Cal. 390, 143 Pac. 697.

22. Where at the time of the service of notice of motion to vacate a default there is a verified answer on file setting forth a defense to the cause of action alleged in the complaint, no affidavit of merits is necessary. Savage v. Smith, 170 Cal. 472, 150 Pac. 353.

23. An order setting aside a default on the ground of excusable neglect, which is not accompanied by an affidavit of merits, is erroneous.-Start v. Heinzerling, 27 Cal. App. 145, 149 Pac. 50.

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the year.-Estate of Simmons, 168 Cal. 390, 143 Pac. 697.

25. Where a wife failed to contest an action for divorce due to fear because of representations made by her husband and her own attorney that, if she did contest, her infant child would be taken from her and placed in some public institution, and an interlocutory judgment had been rendered against her, there is excusable neglect within the meaning of this section.-Rehfuss v. Rehfuss, 169 Cal. 86, 145 Pac. 1020. 26. A notice of motion to vacate a default which states that the motion would be made upon the records and files in the action and upon the affidavit served with the notice is sufficient to apprise the plaintiff of the grounds of the motion, where it appears from the affidavit that the application for relief is made under section 473 of the Code of Civil Procedure on the ground of excusable neglect.-Savage v. Smith, 170 Cal. 472, 150 Pac. 353.

27. The showing of a meritorious defense is not a condition precedent to setting aside a judgment as fraudulent if the fraud alleged is that the plaintiff occupied a fiduciary relation making it inequitable for him to secure the judgment.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

28. Where an order has been made "irregularly and through inadvertence," the court has power, of its own motion or on application of a party, to set the order aside. -Robson v. Superior Court, 171 Cal. 588, 154 Pac. 8.

29. Under such circumstances it is not necessary that relief be obtained under section 473 of the Code of Civil Procedure; the inadvertence is that of the court, not of the moving party.-Robson v. Superior Court, 171 Cal. 588, 154 Pac. 8.

30. The inadvertent entry of the wrong date within which to serve a proposed bill of exceptions in the book in which the moving party's attorneys kept a record of the proceedings to be taken by them furnishes sufficient ground for relief under the remedial provisions of section 473 of the Code of Civil Procedure.-Haviland v. Southern Cal. Edison Co., 172 Cal. 601, 158 Pac. 328.

31. An oral stipulation granting time to plead to plaintiff's complaint made with the plaintiff instead of his attorney is not binding; but reliance upon it is merely inadvertence and excusable neglect, upon a showing of which the court is justified in setting aside a default.-Koehler v. Ferrari & Co., 29 Cal. App. 487, 156 Pac. 69.

32. An entry by an attorney in his diary of a wrong date of trial is such an inadvertence and excusable neglect as will justify the vacation of the judgment in the absence of suggestion that it was deliberately done as the foundation for a dilatory move in the case. - Hagenkamp v. Equitable Life Assur. Soc., 29 Cal. App. 713, 156 Pac. 520.

33. -Mistake as to party defendant.— Where an action was brought against a New York corporation which was duly served, answered, and appeared at the trial,

but upon the introduction of evidence it appeared that the alleged trespass sued upon was committed by a California corporation of the same name, entirely disconnected from the New York corporation, and which had not been served or had not appeared, the court erred in permitting the complaint to be amended by substituting the word "California" for "New York" in the name of the defendant and directing the trial to proceed. It was further an abuse of discretion to refuse to set aside a verdict and judgment against the California corporation upon an application for relief under this section.-Altpeter v. Postal TelegraphCable Co., 26 Cal. App. 705, 148 Pac. 241.

34. Where a corporation is substituted as a party defendant in place of another corporation, a judgment entered against it, when there has been no service upon or appearance in behalf of it, may be vacated under section 473 of the Code of Civil Procedure. Altpeter v. Postal Telegraph-Cable Co., 26 Cal. App. 705, 148 Pac. 241.

35. Relief from what. A defaulting party in proceedings to oppose the settlement of a bill of exceptions for failure of timely service may be relieved under section 473 of the Code of Civil Procedure.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

36. Opposition to the settlement of a bill of exceptions for failure of timely service is a "proceeding against a party," and the trial court may relieve the defaulting party under section 473 of the Code of Civil Procedure. Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542. 37. A court has jurisdiction to grant relief under section 473 of the Code of Civil Procedure for failure to make timely service of a proposed bill of exceptions to be used on a motion for a new trial, or on an appeal from a judgment.-Haviland v. Southern Cal. Edison Co., 172 Cal. 601, 158 Pac. 328.

38. A moving party may be relieved, under section 473 of the Code of Civil Procedure, from failure to present his statement in time, notwithstanding the failure to properly initiate proceedings for a new trial. Neale v. Morrow, 174 Cal. 49, 161 Pac. 1165.

39. Fraud that would avail to set aside the solemn judgment in rem of a court of record must be clearly pleaded and proven; and, in cases where the knowledge of the fraud of the perpetrator is charged on information and belief, there must be allegations of fact which show positively or by reasonable inference that such knowledge must have been possessed by the person accused of the fraud.-Dowling v. Spring Valley Water Co., 53 Cal. Dec. 68, 162 Pac. 894.

40. Where the judgment is one which has been taken against a party without any notice whatsoever, it is not a judgment taken through "his mistake, inadvertence, surprise or excusable neglect," and in such a case, no adequate remedy being pointed out by the statute, the party may resort to equity to obtain redress because of the

fraud at any time within the period fixed by the statute of limitations.-Hawley v. State Assurance Co., 28 Cal. App. 41, 151 Pac. 153.

41. This section applies to defaults in presenting a statement of the case on motion for new trial, and limits the time within which application may be made for relief to six months from the time of default.-Van Cott v. Frank, 30 Cal. App. 450, 158 Pac. 505.

42. The amendment.-An amendment to a complaint which does not prejudice defendant except to deprive him of an opportunity to defeat a just claim on technical grounds, is properly allowed.-San Joaquin Valley Bank v. Gate City Oil Co., 170 Cal. 250, 149 Pac. 557.

43. An amendment of the original pleading is not allowable which changes the cause of action therein set forth.-Altpeter v. Postal Telegraph-Cable Co., 26 Cal. App. 705, 148 Pac. 241.

44. The fact that the proof required to support the cause of action stated in the amended complaint might be different from that offered and received in support of the original complaint would not necessarily tend to show that the amended complaint stated a new and an entirely different cause of action.-Mackroth v. Sladky, 27 Cal. App. 112, 148 Pac. 978.

45. Mistakes in the statement of the subject-matter of an action may be corrected by amendment so long as the identity of the claim remains the same. Mackroth Sladky, 27 Cal. App. 112, 148 Pac. 978.

V.

of

46. The fact that an oral agreement pleaded and relied upon for a cause action in the amended complaint would have been barred by the statute of limitations at the time when the amended complaint was filed does not preclude the court, in the exercise of its discretion, from granting the plaintiff's motion to amend; the cause of action stated in the amended complaint, if in effect the same as that stated in the original complaint, related back to the date upon which the original complaint was filed, in so far as the plea of the statute of limitations was concerned.-Mackroth v. Sladky, 27 Cal. App. 112, 148 Pac. 978.

47. It is proper to order pleadings to be so amended as to conform to the proofs during the trial of the cause and even after the trial.-Stohlman v. Martin, 28 Cal. App. 338, 152 Pac. 319.

48. An amended complaint supersedes the original complaint for all purposes of the trial, and by its allegations the testimony of the plaintiff must be viewed and considered. Snyder v. Miller, 29 Cal. App. 566, 157 Pac. 22.

49. The allowance of amendments to pleadings is a matter resting in the sound legal discretion of the trial court, and the appellate courts of this state have repeatedly declared that "great liberality should

be shown by a trial court in permitting, where it can be done without working great delay, such amendments to pleadings as will facilitate the production of all the facts bearing upon the questions involved in the action." Snyder v. Miller, 29 Cal. App. 566, 157 Pac. 22.

50. Amendments under our practice are liberally allowed, and in the main that matter rests within the discretion of the trial court. Such amendments may be made to a complaint either during the trial or after the evidence is all in. Koch v. Wilcoxon, 30 Cal. App. 517, 158 Pac. 1048. 51. In an action to recover the balance due on notes given for traction engines where the order blank for the engine which became the executed contract between the parties recited an acknowledgment by the purchaser that no promises, representations, etc., had been made to them that were not contained in the order, there is no abuse of discretion in refusing to permit the defendants to amend their answer by alleging that they did not read the order before executing it.-J. I. Case Threshing Machine Co. v. Copren Brothers, 32 Cal. App. 194, 162 Pac. 647.

52. Imposition of conditions.-The court may properly impose the payment of twentyfive dollars to the defendant as terms upon which the plaintiff is granted leave to file an amended complaint after a demurrer has been sustained to the original one.-Pike v. Zadig, 171 Cal. 273, 152 Pac. 923.

53. -Power of court to enter, correct or modify judgment.-After an order granting a new trial is made the court can not modify it except by proceedings taken hereunder or by a proceeding for an entry nunc pro tunc. It can not modify the order or change its terms by a bill of exceptions.-Frost v. Los Angeles R. Co., 165 Cal. 365, 132 Pac. 442.

54. The trial court may always amend the entered judgment to make it conform to the decision which the court actually rendered, but it may never subsequently amend by making new modifications or enlargements of the judgment which it originally rendered, or the judgment record which is in accordance with the decision which was actually rendered, even though the proposed amendment contains matters which should have been so pronounced. Takekawa v. Hole, 165 Cal. 372, 149 Pac. 593.

55. The court has no power to relieve a party where he failed to file his notice of intention to move for a new trial even though it was regularly served.-Neale v. Morrow, 174 Cal. 49, 161 Pac. 1165.

56. Where an order is inadvertently entered sustaining a demurrer to a complaint as to certain causes of action and overruling it as to others, the court has power to direct the entry of a corrected order sustaining the demurrer as to each of the alleged causes of action.-Des Granges v. Crall, 27 Cal. App. 313, 149 Pac. 777.

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