28. Amendments to complaint.-The plaintiffs should be permitted, if they desire, to so amend their complaint as to present for determination their legal rights, otherwise the complaint should be dismissed. McDonald v. Bear River and Auburn Water and Mining Co., 15 Cal. 145.

29. It is error to refuse to allow a plaintiff to strike out a claim for damages, without regard to the purpose which may influence him. Grass Valley Quartz Mining Co. v. Stackhouse, 6 Cal. 413.

30. The plaintiff sued in assumpsit to recover rent for premises, the possession of which he had previously recovered by ejectment against the defendant. After a trial and verdict, which was set aside by the Court, he amended his complaint, to make in form an action of trespass for mesne profits: Held, that was erroneous, and should not have been permitted. Ramirez v. Murray, 5 Cal. 222.

31. Upon the remittitur of a cause to the Court below, if the plaintiffs desire to amend their complaint so as to present their legal rights for the determination of a jury, they should be permitted to do so. McDonald v. Bear River Water and Mining Co., 15 Cal. 149.

32. Where the proof does not sustain the allegations of the bill, and where by the proof the complainant would be entitled to relief in a Court of equity, if his pleadings had been properly framed, an amendment should be allowed or directed, to conform the pleadings to the facts which ought to be in issue, in order to enable the Court to decree fully on the merits; and whenever this is not done it is error. Connolly v. Peck, 3 Cal. 82.

33. A Court may order judgment creditors, as subsequent incumbrancers, to be made parties to an action, by an amendment of the complaint, as a better course, or by petition or intervention. Horn v. Volcano Water Co., 13 Cal. 70.

34. The misjoinder of parties can be corrected by amendment under the statute. Heath v. Lent, 1 Cal. 412.

35. The wife is a proper party defendant in a suit to foreclose a mortgage executed upon premises claimed as a homestead. If not made such a party, she may intervene, or by permission of the Court, be allowed to file a separate answer, the plaintiff having the liberty to amend his complaint, if any matters are set up in the answer which he might wish to anticipate by further allegations. Moss v. Warner and Wife, 10 Cal. 296.

36. Where an amended complaint in ejectment sets up title acquired after the commencement of the suit, and a judgment by default is regularly entered, the judgment is valid. Smith v. Billet, 15 Cal. 26.

37. In an action brought by a corporation claiming to have been incorporated in 1852, under a general law, it appeared on the trial that a part of the indebtedness sued on accrued to a corporation of the same name as plaintiffs, before that date; that such corporation was originally formed by special charter, and that on the expiration of that charter in 1852, the present corporation was organized under the general law, and the portion of the indebtedness in question was passed to it, with other assets, by assignment: Held, 1st, that the variance could not be amended by a referee; 2d, that the Court had power to amend it upon terms. Union Bank v. Mott, 10 Abbott's Pr. 372.

38. It does not follow that, because the complaint does not state facts sufficient to constitute a cause of action, the Judge at the trial is bound to dismiss it on the defendant's motion. It is true that the defendant does not waive the objection by omitting to demur; but if the evidence at the trial supplies the defect in the complaint, without in substance changing the nature of the claim, the plaintiff is entitled to amend. Lounsbury v. Purdy, 4 E. P. Smith's R. (18 N. Y.) 515.

39. It seems that a plaintiff may recover commissions on a larger sum than that alleged in the complaint; as the complaint may be amended. Morgan v. Mason, 4 E. D. Smith's C. P. R. 636.

40. Facts occurring after suit brought cannot, under any circumstances, be incorporated into a complaint by way of amendment, nor can they be brought before the Court by supplemental complaint, when the original complaint states no cause of action. No party can recover in an action which was commenced when the cause of action had not occurred. McCullough v. Colby, 4 Bosw. 603. 41. The complaint, in an action brought by a bank in the name of the President, did not contain any allegation to show that the bill had been negotiated to the plaintiff's bank, though the plaintiff named himself as President of the association: Held, that the intention to enforce a claim in favor of the bank was plain,

and leave to amend on payment of costs was proper. Van Duzer v. Howe, 21 N. Y. (7 Smith) 531.

42. Amendments by filing supplemental complaint.-Facts which occur subsequent to the filing of the original complaint, and which change the liabilities of the defendant, and in consequence, the character of the judgment which is sought, cannot be incorporated with the original complaint by an amendment, without presenting averments inconsistent with the date of the commencement of the action. Van Maren v. Johnson, 15 Cal. 311.

43. When suit is brought against a female, who subsequently marries, her husband must be made a codefendant. But this should be done, and an averment of the marriage be made, by a supplemental complaint, and not by an amendment to the original. Id.

44. Amendments to conform pleadings to facts.-Where the proof does not sustain the allegations of the bill, and where, by the proof, the complainant would be entitled to relief in a Court of Equity, if his pleadings had been properly framed, an amendment should be allowed, or directed, to conform the pleadings to the facts which ought to be in issue, in order to enable the Court to decree fully on the merits; and whenever this is not done, it is error. nally v. Peck, 3 Cal. 82.

Con

45. A party has a right to have his pleadings amended, so as to conform to the proofs. Tryon v. Sutton, 13 Cal. 494.

46. Substitution of pleadings.-The substitution of papers (or pleadings in a case) is always within the discretion of the Court, and no notice of the motion to apply for it need be given, when the notice can be of no use. Benedict v. Cozzens, 4 Cal. 381.

47. Amendments to answer.-Where the complaint is verified, it is no error to allow the defendant to verify his answer before trial, unless it is shown that the plaintiff is thereby taken by surprise. Angier v. Masterson, 6 Cal. 61.

48. A joint claim by two persons cannot be pleaded as a counter claim by one defendant; but he may amend, and allege that the whole interest therein has been transferred to him. Stearns v. Martin, 4 Cal. 229.

49. The fact that a proposed amended answer contains a positive denial of the allegations of the complaint, while the original answer only denies them on information and belief, is not an objection to allowing it. Shanks v. Rae, 19 How. Pr.; 18 Cal. 540.

50. Bill of costs, amendment of.-Under the sixty-eighth section of the Practice Act, the Court has power, in the exercise of its discretion, to allow the amendment of a bill of costs, and the affidavit accompanying it. Burnham v. Hays, 3 Cal. 115.

51. Where the original bill of costs is filed within the time prescribed by act, an amendment allowed after the time relates back to the time of filing the original, of which it forms merely a part. Id.

52. Fraud.-Fraud discovered after suit brought will entitle the party to amend his action so as to include it. Truebody v. Jacobson, 2 Cal. 269; Matoon v. Eder, 6 Id. 61.

53. It would be proper for the Court to order the complaint to be amended in an action where the defendant is arrested, so that the question of fraud should be submitted to the jury, and a judgment entered in conformity to the facts found. Matoon v. Eder, 6 Cal. 61; Davis v. Robinson, 10 Cal. 412.

54. Garnishee may amend his answer.-To subserve the purposes of justice, Courts should allow a garnishee to amend his answer whenever it appears that he has committed a mistake, or fallen into an error, which could not reasonably have been avoided. Smith v. Brown, 5 Cal. 118.

55. Limitations, Statute of.-The plea of the Statute of Limitations is not favored, unless in aid of justice; but the Court should allow it to be pleaded at any time, when justice will be attained thereby. Cooke v. Spears, 2 Cal. 409. 56. It is not error for a Court to refuse permission to set up the Statute of Limitations after answering to the merits. Stuart v. Lander, 16 Cal. 372.

57. Two defendants filed a joint plea of the Statute of Limitations, and the plea being held bad as to one defendant, the Court, on the trial, permitted the other defendant to amend and file a separate plea of the statute: Held, that this was no such gross abuse of discretion as to enable the Supreme Court to reverse it. Robinson v. Smith, 14 Cal. 254.

58. Referees.-Referees have no power to pleadings, after a case has been referred to them. 199.

allow parties to alter or amend De la Riva v. Berreyesa, 2 Cal.

59. Sheriff's return.-A Sheriff has no right, after making a return, to amend it so as to affect rights which had already vested in third parties. Newhall v. Provost, 6 Cal. 87; Webster v. Haworth, 8 Cal. 25.

60. Summons may be amended.-The Court may allow a summons to be amended by inserting the notice of the cause of action, etc., required by the Act of 1851. Pollock v. Hunt, 2 Cal. 193.

61. The defendants were administrators of the estate of A, and one of them was also executor of the estate of B. The plaintiff having a demand against the estate of A, directed his attorney to sue the defendants thereon, naming them by mistake as the representatives of B, and the summons issued accordingly: Held, that this was a mere misdescription of the representative capacity, and the Court had power to allow an amendment. McElwain v. Corning, 12 Abbott's Pr. R. 16.

62. A summons was issued in the Marine Court, in the name of Corydon, the given name of the plaintiff, his surname being omitted. On the return of process, all the parties appeared by attorney; and, on the motion of the plaintiff's attorney, the clerk amended the summons by inserting the surname, in pursuance of the direction of the presiding Justice: Held, that the amendment was within the power of the Court, and having done no harm to the defendant, was not ground of reversal. Stanton v. Leland, 4 E. D. Smith's C. P. R. 88.

63. Warrant of attachment.-The warrant of attachment issued under the Code as a provisional remedy, may be allowed to be amended by supplying the omission of the signature of the attorney. Kissane v. Marshall, 10 Abbott's Pr. R. 424.

64. Judgment, within what time may be set aside.-The District Court is not limited by the present act as to the time within which it may grant relief, upon a judgment unjustly or improperly obtained. The People v. Lafarge, 3 Cal. 130.

65. After the adjournment of the term, the Court loses all control over cases decided, unless its jurisdiction is saved by some motion or proceeding at the time: except in the single case provided by statute, where the summons has not been served, in which the party is allowed six months to move to set the judgment aside. Carpentier v. Hart, 5 Cal. 406.

66. No motion can be entertained by a District Court to set aside a judgment on any ground, including that of want of jurisdiction over the person of the defendant in the action in which the judgment was entered, after the expiration of the term in which it was entered, unless its jurisdiction is saved by some motion or proceeding at the time, except in the case provided for by the sixty-eighth section of the Practice Act. Bell v. Thompson, 20 Cal.

67. A Court will not be permitted, after the lapse of a term, to open a judgment upon motion, and render a new judgment. Morrison, Adm'r of Ramirez, v. Dapman & West, 3 Cal. 255.

68. But if there is record evidence to show that the judgment was different from the one entered, the latter must stand until reversed. Id.

69. An order of Court setting aside a default and judgment entered during vacation is regular and correct, where there has been no service of summons upon the defendants. Pico v. Carrillo, 7 Cal. 30.

70. This proceeding is expressly authorized by the sixty-eighth section of the Practice Act, and it is not necessary to file a bill in chancery to vacate the judg ment. Id.

71. After final judgment reversed.-When a final judgment, on demurrer to the complaint sustaining the demurrer, was reversed, the plaintiff had

the right to amend, on application to the Court below. Williamson v. Blattan, 9 Cal. 500.

72. Default, when it will be set aside.-A judgment by default will be set aside on the ground of fraud or surprise. Bidleman v. Kewen, 2 Cal. 250. 73. After two attempts to serve an answer, which failed by reason of plaintiff's office being closed, the clerk of defendant's attorney, to whom the duty of making service was committed, forgot it, and in the absence of defendant's attorney from town, the time for service elapsed: Held, that the Court should open the default; and an order refusing to do so was reversed on appeal, under a certificate according to rule of 1851. Clark v. Lyon, 2 Hilt. 91.

74. On opening, upon sufficient excuse, a default regularly taken against the defendant, the Court should not impose, as terms of the favor, a requirement that the defendant shall not interpose the defense of a former adjudication. Audubon v. Excelsior Fire Ins. Co., 10 Abb. Pr. R. 63.

75. It is almost of course to open a default if the proposed defense is not clearly frivolous, is set up in good faith, and the neglect excused. Commissioners of Excise v. Hollester, 2 Hilt. 588.

76. Amendment, nunc pro tunc.-A Court may at any time render or amend a judgment nunc pro tunc, when the record discloses that the entry on the minutes does not correctly give what was the judgment of the Court. Morrison, Adm'r of Ramirez, v. Dapman & West, 3 Cal. 255.

77. In an action for libel, the complaint stated thirteen causes of action, to the sixth of which the defendant demurred, and to the others he answered. The plaintiff having recovered a verdict on the trial of the issues of fact, entered judg ment. His judgment roll contained the whole complaint, and the demurrer to the sixth cause of action; but this issue of law had never been brought to trial. The defendant appealed from the judgment; and the plaintiff's points submitted on the argument of the appeal, stated that the sixth cause of action was abandoned on the trial. The plaintiff now moved that the judgment roll be amended by inserting, nunc pro tunc, an order that he take nothing by the sixth cause of action: Held, first, that the Court should from the facts deem the sixth cause of action to have been abandoned; second, that it was competent for the Court to allow such an amendment upon terms; third, that the condition imposed should be, that the plaintiff consent to allow an amendment which the defendant asked to have made in the case settled on the appeal, by the insertion of matters which occurred at the trial, and which were of sufficient importance to entitle him to be heard on them on appeal. Fry v. Bennett, 9 Abb. Pr. R. 45.

78. A purchaser at a judicial sale is not necessarily to be discharged on account of formal defects in the verification of a petition for the appointment of guardian for an infant defendant in the action in which the sale is decreed, or formal defects in the authentication of the verification; but such defects may be supplied by amendments, nunc pro tunc. Rogers v. McLean, 11 Abb. Pr. R. 440.

79. Where, in a partition suit, the names of certain defendants, through inadvertence, were omitted from the copy of summons filed: Held, that this was not conclusive that they had not been made parties; and they having been actually parties, the summons might be amended after judgment and sale. Van Wyck v. Hardy, 11 Abb. Pr. R. 473.

80. The Court has not power to amend a judgment, on motion, by qualifying its provisions in a respect in which there was no mistake, nor any omission of a direction which would have been inserted, as of course, if originally asked for. N. Y. Ice Co. v. Northwestern Ins. Co., 11 Abb. Pr. R. 419.

81. The want of a verification by an infant defendant to his petition for the appointment of a guardian ad litem, may be allowed to be supplied after judgment; and it seems that the Court may dispense with such verification. Van Wyck v. Hardy, 11 Abb. Pr. R. 473.

82. Statute remedy not exclusive.-All Courts having chancery jurisdiction have power to set aside a judgment improperly obtained. "The People v. Lafarge, 3 Cal. 130.

83. A party is not confined to his remedy by statute, but may resort to a Court of Equity for relief against a judgment obtained by fraud or surprise. Carpentier v. Hart, 5 Cal. 406.

84. Judgment, form and sufficiency of the application to set aside. No particular form is required by the statute in which application shall be made for such relief. All that is required is, that the facts shall be set forth, and if they show a case coming within the rule, it is sufficient. The People v. Lafarge, 3 Cal. 130.

85. An affidavit to the effect that an instrument has been materially altered, without showing in any manner in what the alteration consists, furnishes but feeble ground upon which to base a motion to set aside a judgment. Taylor v. Randall, 5 Cal. 79.

86. An affidavit of merits, without any averment of mistake, surprise or excusable neglect, is not sufficient to warrant the setting aside a default, where personal service of summons was made. Harlan v. Smith, 6 Cal. 173.

87. An affidavit by defendant that he was under the impression, when he retained counsel in a cause, that the time to answer had not expired; that he did not recollect the precise day upon which the summons and complaint were served; that he was quite ill at the time, and did not as carefully note the time as he otherwise would, is insufficient to open a judgment by default. Elliott v. Shaw, 16 Cal. 377.

88. Judgments setting aside, discretionery.-Where a judg ment is set aside, under the sixty-eighth section of the Practice Act, and a party permitted to come in and defend, the Supreme Court will not interfere, unless there was a clear abuse of discretion in the Court below. Roland v. Kreyenhagen, 18 Cal. 455.

89. The refusal to set aside a judgment on the ground of surprise rests with the sound discretion of the Court below, and unless it is shown to have been an abuse of the same this Court will not interfere. Mulholland v. Heyneman, 20 Cal. 90. In setting aside a judgment, the Court below will use its own discretion, and this Court will not interfere, unless in case of gross abuse. Woodward v. Backus, 20 Cal.

91. In motions to set aside a judgment, it would be well to state the facts constituting the defense, rather than that the facts have been fully represented to counsel. Id.

92. Confession, judgment by.-A judgment by confession, founded on a defective statement, cannot be amended so as to sustain its priority over intervening judgment creditors. McKee v. Tipson, ante, 392.

93. Judgment, should be corrected in the Court below.Errors in the computation of interest should be corrected by motion in the Court below. Whitney v. Buckman, 13 Cal. 536.

94. A mere clerical error in the judgment, not affecting the appellant, can be corrected, and is not ground for reversal. Anderson v. Parker, 6 Cal. 197.

95. A judgment will not be set aside, on the application of a creditor of the judgment debtor, upon the ground that the judgment was taken for more than was actually due upon the note, when it appears that a mistake of a few cents only was made in calculating the interest due upon the note. Ziel, Bertheau & Co. v. Dukes, 12 Cal. 479.

96. On appeal taken by defendant immediately after judgment on default, on the ground of insufficiency of the affidavit of publication of summons, the appellate Court will not disturb the judgment, the defendant having his remedy in the Courts below within six months after judgment. Guy v. Ide, 6 Cal. 99.

97. Records, Court may amend during the term, but not after an appeal is taken.-While the term lasts, the Court has power to amend the records. After the term has passed, the record cannot be amended, unless there is something in the record to amend by. Branger v. Chevalier, 9 Cal.

173.

98. When a judgment is rendered and an appeal taken, the Court below loses control over the judgment, and an order amending the judgment is erroneous. Bryan v. Berry, 8 Cal. 134.

99. Judgment, method of amending.-The method of amending a judgment record by an obliteration or erasure, even when it leaves the passage legible, is not the proper mode. It should be by appending the order of amend