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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.

§ 472. 1. Amendment to meet variance. -A com

1. Amendments ‘of course_Effect of deplaint which avers performance of a con- murrer.-Where the defendant interposed a tract by the plaintiff is not sustained by frivolous demurrer and the court, overrulevidence that the defendant waived per- ing the same, permitted defendant to answer formance. In such case, however, the court within five days "on the payment of ten may, in the interest of justice, allow an dollars to the opposite party" and filed his amendment of the complaint to conform to answer without attempting to conform to the proofs.-Flickinger v. Wrenn Invest- the order, the court properly granted plainment Co., 172 Cal. 132, 155 Pac. 627.

tiff's motion to strike out the answer and 2. The court has the right and power to for judgment upon defendant's default.allow an amended complaint to be filed to Pierce v. Avakian, 167 Cal. 330, 139 Pac. 799. conform with the proof, even after submis- 2. Liberality in the allowance of

an sion of the cause.—Sweet v. Richvale Land amendment to a pleading is the rule rather Co., 29 Cal. App. 111, 154 Pac. 608.

than the exception; and in cases where an 3. An amendment may always be made amendment can be made in furtherance of to conform to the proof, provided the cause justice without jeopardizing the rights of of action is not thereby changed.—Koch v. an adverse party, it should be freely alWilcoxon, 30 Cal. App. 517, 158 Pac. 1048. lowed.-Mackroth v. Sladky, 27 Cal. App.

112, 148 Pac. 978. § 470.

3. The superior court has authority to 1. Immaterial variance.. — Variance be- deny a defendant the privilege to file an tween allegation and proof is immaterial answer after he has interposed a demurrer where parties are not misled thereby.-- and it has been overruled, the matter resting Gordon V. Cadwalader 172 Cal. 60, 156 in the discretion of the court, subject to Pac. 47.

review in case of its arbitrary or unreason

able exercise.—Leavell v. Superior Court, $ 471.

27 Cal. App. 191, 149 Pac. 372. 1. What not deemed a variance - Con- 4. An amendment to any pleading after struction. In an action to recover for ser- a demurrer is sustained thereto is a waiver vices rendered in making a sale of shares of the right to object to any error in the of corporate stock there is a "failure of sustaining of the demurrer.-Carter v. Canty, proof" within the meaning of this section 28 Cal. App. 323, 152 Pac. 312. where the complaint alleged an agreement 5. Where the defendant files an amended on the part of the defendants to pay plain-, pleading after the demurrer to the original tiff a specified sum of money for such pleading has been sustained and the case services and the evidence showed that the thereafter goes to trial and judgment, any contract was he was to accept a certain error committed in sustaining the demurrer number of shares of stock in full compensa- is waived.---Carter v. Canty, 28 Cal. App. tion for the services.-Gillin v. Hopkins, 28 323, 152 Pac. 312. Cal. App. 579, 153 Pac. 724.

8 473. 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;

[Time for application.] provided, that application therefor be made within a reasonable ne, 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.

an

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.

the year has elapsed.-Osmont v. All Per1, 2. Construction of section.

sons, 165 Cal. 587, 133 Pac. 480. 3, 4. As to right to relief not being an 4. Bill in equity to enjoin the enforceabsolute right.

ment of a judgment of a state court on the 5-12. —Matter of discretion of court.

ground of fraud will not lie where the plain13-19. As to time for application.

tiff knew of the judgment less than four

weeks after its rendition, as he has a plain, 20-23. Affidavit of merits. 24-32. Grounds for relief.

speedy and adequate remedy under section

473 of the Code of Civil Procedure.-Eggers 33, 34. —Mistake as to party defendant. 35-41. Relief from what.

v. Krueger, 236 Fed. 852. 42-51. The amendment.

-Matter of discretion of court.-The 52. –Imposition of conditions.

giving of the relief is discretionary with 53–56. —Power of court to enter, correct or

the trial court, and appellate courts will modify judgment.

not reverse this decision in the absence of

abuse of discreton. — Oppenheimer V. 1. Construction of section. - Section 473

Radke, 165 Cal. 220, 131 Pac. 365. of the Code of Civil Procedure is inapplicable to proceedings to vacate judgments in

6. Whether the application be granted or

refused the discretion reposed in the trial justices' courts, as the same are governed by section 859 of such code.--Arbogast v. Supe

court in an application for relief will not rior Court, 32 Cal. App. 372, 162 Pac. 909.

be disturbed by an appellate court unless

there has been an abuse thereof.-Hole v. 2. Relief may be obtained under this section notwithstanding the fact that the judg

Takekawa, 165 Cal. 372, 132 Pac. 445. ment had been satisfied before the applica

7. An application under this section is tion for relief was made. — Patterson V. addressed to the sound discretion of the Keeney, 165 Cal. 465, Ann. Cas. 1914D 232,

trial court, and the exercise thereof will 132 Pac. 1043.

not be interfered with except an abuse 3. As to right to relief not being an ab

clearly appears. Any doubt should be resolute right.-The right of a defendant who solved in favor of the application in order has not been served with summons to have to secure a trial upon the merits. Savage his default opened is not absolute and un

v. Smith, 170 Cal. 472, 150 Pac. 353. conditional. He must first make timely mo- 8. The power given by section 473 of the tion within a year; second, establish that Code of Civil Procedure to relieve from he has a meritorious defense, and, third, defaults is to be liberally exercised with comply with such reasonable terms as the a view to bringing about a determination court may impose in granting his motion. on the merits. Orders granting relief are When all this has been satisfactorily done to be set aside only where there has been the right of the moving party becomes ab- a manifest abuse of discretion.-Haviland solute and is not lost because the court v. Southern Calif. Edison Co., 172 Cal. 601, postpones its decision on the motion until 158 Pac. 32,8.

9. While it is generally true that the 16. An appeal from a judgment must be exercise of the power to set aside a judg- dismissed for failure to file the transcript ment taken as a result of the alleged excus- within the time prescribed by the rules of able neglect of one of the parties to the the supreme court, where the same is not action is largely a matter of discretion, filed within forty days after the expiration nevertheless, where the disclosed and undis- of the time allowed by section 473 of the puted circumstances attending the taking Code of Civil Procedure for relief from of the judgment are such as would natur- defaults for failure to serve proposed bills ally cause the lower court to hesitate in of exceptions and statements on such an its decision of the motion to vacate, that appeal within the time allowed by law.-discretion should be exercised so as to bring Cox v. Palos Verdes Co., 172 Cal. 702, 158 about a judgment upon the merits of the Pac. 332. action. Where the plaintiff had in good 17. In an action to establish a trust and faith endeavored to ascertain from the clerk

for an accounting, the interlocutory decree of the court the condition of the cause ordering the accounting and the final judgon the court calendar and was honestly ment entered upon the accounting are not misled by the information he received, the subject to be set aside under section 473 neglect of the plaintiff was excusable within of the Code of Civil Procedure, where no the meaning and intent of this section.

application for relief was made until nine Lynch v. de Boom, 26 Cal. App. 311, 146 Pac. months after the entry of the interlocutory 908.

decree, and the moving parties participated 10. While it is true that the exercise in the sessions of the commissioner, who of the discretion is better exercised when took the accounting and sought a deterit tends to bring about a decision on the mination therein favorable to themselves.merits, still the rule is that unless the Glougie v. Glougie, 174 Cal. 126, 162 Pac. 118. record clearly shows that the trial court 18. The superior court has jurisdiction to has abused its discretion, its order, whether grant an application made by the defendant it be to grant or deny the application, will under section 473 of the Code of Civil Probe affirmed.-Morton v. Shannon, 26 Cal.

cedure to vacate an order setting aside an App. 689, 147 Pac. 1179.

interlocutory judgment for divorce, where 11. It is better to dispose of causes upon the application is made within six months their substantial merits than with a strict after the making of the order.-Suttman v. regard to technical rules of procedure. The Superior Court, 53 Cal. Dec. 84, 162 Pac. discretion of the court ought always to be 1032. exercised in such manner as will subserve 19. The superior court has no jurisdicrather than impede or defeat the ends of tion, under section 473 of the Code of Civil justice.-McMunn v. Lehrke, 29 Cal. App. Procedure, to grant a motion for relief from 298, 155 Pac. 473.

the failure to present for settlement a pro12. Where a party in default makes sea

posed statement and amendments thereto sonable application to be relieved there

on motion for a new trial, where the defrom, very slight evidence will be required

fault had continued for a period of more to justify the court in setting aside the

than six months after the time prescribed default. — Hagenkamp V. Equitable Life by section 650 of such code.- Van Cott v. Assur., 29 Cal. App. 713, 156 Pac. 520.

Frank, 30 Cal. App. 450, 158 Pac. 505. 13. As to time for application.—When the

20. Affidavit of merits.-An affidavit of motion for relief is not made within the merits is necessary to a motion for relief time limit the court can only grant it from

on the grounds prescribed herein.-Parkan inspection of the judgment roll, and

side Realty Co. v. MacDonald, 167 Cal. 342, then only if such inspection showed that

139 Pac. 805. the judgment was void upon its face.—Lake 21. An affidavit of merits is necessary v. Superior Court, 165 Cal. 182, 131 Pac. 371. to secure relief under this section.-Estate 14. A person served by publication may

of Simmons, 168 Cal. 390, 143 Pac. 697. come in at any time within a year and

Where at the time of the service of have the judgment set aside. Parkside notice of motion to vacate a default there Realty Co. v. MacDonald, 166 Cal. 426, 137 is a verified answer on file setting forth Pac. 21.

a defense to the cause of action alleged in 15. A father, who had been deprived of

the complaint, no affidavit of merits is necthe custody of his minor child through the essary.–Savage v. Smith, 170 Cal. 472, 150 awarding by the court to the mother as a

Pac. 353. result of divorce proceedings, may obtain

23. An order setting aside a default on relief from an order in adoption proceed- the ground of excusable neglect, which is ings to which the mother before her death not accompanied by an affidavit of merits, had consented, but of which the father is erroneous.-Start v. Heinzerling, 27 Cal. had no notice or knowledge, either by a App. 145, 149 Pac. 50. timely motion in that proceeding, or by an 24, Grounds for relief.—A very liberal independent action to set aside the order interpretation will be given the provisions of adoption. The period of limitation within herein, and the trial court has power to which relief must be sought begins to run relieve a contestant whose petition for revofrom the date of the filing of the order of cation of the probate of a will, duly filed, adoption.-Bell v. Krauss, 169 Cal. 387, 146 has not been dismissed, from the failure Pac. 874.

to have citation issued and served within 31. An oral stipulation granting time to 39. Fraud that would avail to set aside plead to plaintiff's complaint made with the the solemn judgment in rem of a court of plaintiff instead of his attorney is not bind- record must be clearly pleaded and proven; ing; but reliance upon it is merely inadver- and, in cases where the knowledge of the tence and excusable neglect, upon a showing fraud of the perpetrator is charged on inof which the court is justified in setting formation and belief, there must be allegaaside a default.-Koehler v. Ferrari & Co., tions of fact which show positively or by 29 Cal. App. 487, 156 Pac. 69.

22.

the year.-Estate of Simmons, 168 Cal. 390, but upon the introduction of evidence it 143 Pac. 697.

appeared that the alleged trespass sued 25. Where a wife failed to contest an upon was committed by a California coraction for divorce due to fear because of poration of the same name, entirely disconrepresentations made by her husband and nected from the New York corporation, and her own attorney that, if she did contest, which had not been served or had not apher infant child would be taken from her peared, the court erred in permitting the and placed in some public institution, and an complaint to be amended by substituting the interlocutory judgment had been rendered word "California” for “New York" in the against her, there is excusable neglect name of the defendant and directing the within the meaning of this section.-Reh- trial to proceed. It was further an abuse fuss v. Rehfuss, 169 Cal. 86, 145 Pac. 1020. of discretion to refuse to set aside a verdict

26. A notice of motion to vacate a default and judgment against the California corpowhich states that the motion would be made ration upon an application for relief under upon the records and files in the action and this section.--Altpeter v. Postal Telegraphupon the affidavit served with the notice is Cable Co., 26 Cal. App. 705, 148 Pac. 241. sufficient to apprise the plaintiff of the

34. Where a corporation is substituted as grounds of the motion, where it appears a party defendant in place of another corfrom the affidavit that the application for poration, a judgment entered against it, relief is made under section 473 of the Code when there has been no service upon or of Civil Procedure on the ground of excus- appearance in behalf of it, may be vacated able neglect.-Savage v. Smith, 170 Cal. 472, under section 473 of the Code of Civil Pro150 Pac. 353.

cedure.-Altpeter v. Postal Telegraph-Cable 27. The showing of a meritorious defense Co., 26 Cal. App. 705, 148 Pac. 241. is not a condition precedent to setting aside 33. Relief from what. —A defaulting a judgment as fraudulent if the fraud party in proceedings to oppose the settlealleged is that the plaintiff occupied a fidu- ment of a bill of exceptions for failure of ciary relation making it inequitable for him timely service may be relieved under section to secure the judgment.—Title Ins. & Trust 473 of the Code of Civil Procedure.-Title Co. v. California Devel. Co., 171 Cal. 174, 152 Ins. & Trust Co. v. California Devel. Co., 171 Pac. 542.

Cal. 174, 152 Pac, 542. 28. Where an order has been made "ir- 36. Opposition to the settlement of a bill regularly and through inadvertence," the of exceptions for failure of timely service court has power, of its own motion or on is a "proceeding against a party,” and the application of a party, to set the order aside. trial court may relieve the defaulting party -Robson v. Superior Court, 171 Cal. 588, under section 473 of the Code of Civil Pro154 Pac. 8.

cedure.—Title Ins. & Trust Co. v. California 29. Under such circumstances it is not Devel, Co., 171 Cal. 174, 152 Pac. 542. necessary that relief be obtained under sec- 37. A court has jurisdiction to grant retion 473 of the Code of Civil Procedure; lief under section 473 of the Code of Civil the inadvertence is that of the court, not Procedure for failure to make timely service of the moving party.-Robson v. Superior of a proposed bill of exceptions to be used Court, 171 Cal. 588, 154 Pac. 8.

on a motion for a new trial, or on an appeal 30. The inadvertent entry of the wrong from a judgment.-Haviland v. Southern Cal. date within which to serve a proposed bill Edison Co., 172 Cal. 601, 158 Pac. 328. of exceptions in the book in which the mov- 38. A moving party may be relieved, ing party's attorneys kept a record of the under section 473 of the Code of Civil Proproceedings to be taken by them furnishes cedure, from failure to present his statesufficient ground for relief under the reme- ment in time, notwithstanding the failure to dial provisions of section 473 of the Code properly initiate proceedings for new of Civil Procedure.—Haviland v. Southern trial.-Neale v. Morrow, 174 Cal. 49, 161 Pac. Cal. Edison Co., 172 Cal. 601, 158 Pac. 328. 1165.

reasonable inference that such knowledge 32. An entry by an attorney in his diary must have been possessed by the person of a wrong date of trial is such an inadver- accused of the fraud.—Dowling v. Spring tence and excusable neglect as will justify Valley Water Co., 53 Cal. Dec. 68, 162 Pac. the vacation of the judgment in the absence

894. of suggestion that it was deliberately done 40. Where the judgment is one which has as the foundation for a dilatory move in been taken against a party without any the case. — Hagenkamp v. Equitable wife notice whatsoever, it is not a judgment Assur. Soc., 29 Cal. App. 713, 156 Pac. 520. taken through "his mistake, inadvertence,

33. -Mistake as to party defendant.- surprise or excusable neglect," and in such Where an action was brought against a a case, no adequate remedy being pointed New York corporation which was duly out by the statute, the party may resort served, answered, and appeared at the trial, to equity to obtain redress because of the 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.

a

41.

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.

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

V. Sladky, 27 Cal. App. 112, 148 Pac. 978.

46. The fact that oral agreement pleaded and relied upon for a cause of 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 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

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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