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whether the amended petition be considered as an amendment or as an independent step.62 Where the subsequent petition makes no reference to the prior petition, the allegations of the prior petition will be considered as abandoned and of no assistance to the subsequent petition when attacked upon demurrer.63

§ 803. Amended complaint—Time to answer.—A special demurrer filed to the original complaint cannot be treated as applying to the amended complaint filed to conform to the proof at the trial.54 If the amended complaint substitutes a new cause of action and defendant does not consent to the substitution, the proper practice is to move to strike the new complaint from the files on the ground that it states a different cause of action; such attack cannot be made by demurrer.66 Where a complaint in foreclosure is answered jointly and thereafter amended, and the defendants reserve the right, prior to taking the evidence, to answer the amended complaint, they are not bound to adhere to the defense set up in their original answer, but may use any defense available to them or any of them.66

§804. Amendment of verification.—Where an unverified answer denying the execution of a note was not questioned by either party at the trial, an amendment by adding a verification may be allowed, in the furtherance of justice, before or after judgment.67 If a pleading is not subscribed as required, the court will, upon the objection

82 Moore v. Superior Court, 22 Cal. 66 Groom v. Bangs, 153 Cal. 456, 96 App. 156, 133 Pac. 990. Pac- 503

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being raised, permit the party to cure the defect by signing it.58

§ 805. Amendment to answer.—An answer which is defective may be amended during the trial to cure the defect.59 The court should not deny defendant the right to amend when application is made immediately after the rendition of judgment on the pleadings, unless it appears that defendant would be unable to state a defense.60 Where the answer virtually admits the allegations of the complaint, it is evident that defendant cannot plead a good defense.61 A final judgment for plaintiff will not be vacated for the purpose of granting permission to defendant to amend his answer unless the proposed amendment discloses additional facts of defense material to the action and not pleaded in the original answer.62 An amendment offered to the answer at the close of the trial which is not supported by the evidence should not be permitted.63 An amendment during the trial will not be permitted to raise a technical point such as the omission of the plaintiff, a foreign corporation, to comply with the requirements of the Civil Code to qualify to maintain an action within the state.64 A defendant cannot amend his answer to set up an unrecorded deed to himself from the plaintiff of which he had full knowledge and ample time to allege in his prior pleadings.65 If the adverse party is fully protected in his right to meet an amendment and the testimony offered, the

58 West Mountain Lime & S. Co. v. Danley, 38 Utah, 218, 111 Pac. 647.

59 Barber Medicine Co. v. Bradley (Okl.), 150 Pac. 127.

00 Hancock v. Luke, 46 Utah, 26, 148 Pac. 452; Burrus v. Nevada C. O. Y. Ry., 38 Nev. 156, 145 Pac. 926.

6i Cook v. Suburban Realty Co., 20 Cal. App. 538, 129 Pac. 801.

62 State v. Coleman, 71 Wash. 15, 127 Pac. 568.

63 Valentine v. Rosenhaupt, 19 Idaho, 130, 112 Pac. 685; Moore v. Western Meat Co., 16 N. M. 107, 113 Pac. 827.

64 Bernheim Distilling Co. v. Elmore, 12 Cal. App. 85, 106 Pac. 720.

65 Garvey v. Garvey, 52 Wash. 516, 101 Pac. 45.

granting of permission to amend the answer will not be deemed an abuse of discretion.66 It is proper to deny an application to amend the answer during the trial if the proposed amendment is inconsistent with the allegations of the answer.67 A counterclaim introducing a new cause of action cannot be offered as a matter of right at the trial.68 Any defense raised by an amendment to the answer which sets up a defect of parties plaintiff may be used and relied upon on motion for a nonsuit.69

§ 807. Relief from mistake.—An application for relief under section 473 of the California Code of Civil Procedure must be accompanied with a copy of the answer or other pleading proposed to be filed, otherwise the application shall not be granted.69'

§ 812. Right to answer amended pleadings.-^-Amendments made at the trial to conform to the proofs are not put in question by the demurrer to the original complaint.70 If an amended complaint substitute a new cause of action, it should be.attacked by motion.71 Any defense available may be interposed after amendment.78

§815. Irrelevant pleading defined.—In an action upon an open account evidenced by notes, paragraphs setting out the notes are irrelevant, and may be stricken out.73 An

66 Anglo-Californian Bank v. Field, 154 Cal. 513, 98 Pac. 267; Drennan v. Warburton, 33 Okl. 561, 122 Pac. 179.

07 Engle T. Legg, 39 Okl. 475, 135 Pac. 1058.

68 Candelaria v. Miera, 18 N. M. 107, 134 Pac. 829.

89 Burr v. United Railroads, 163 Cal 663, 126 Pac. 873.

89a § 473, Code Civ. Proc., as amended in 1917.

To Morris v. Hartley, 26 Cal. App. 61, 146 Pac. 73.

71 Groom v. Bangs, 153 Cal. 456, 96 Pac. 503.

72 Ayre v. Hizson, 53 Or. 19, 133 Am. St. Rep. 819, Ann. Cas. 1913E, 659, 98 Pac. 515.

73 Leavenworth v. Brandon, 76 Wash. 394, 136 Pac. 375.

allegation in detail of matters of evidence which are covered by the general statement are irrelevant.74 Where a written lease for one year, containing an agreement to surrender at the end of the term is admitted, it cannot be shown that plaintiff said at the time of the negotiations for the lease that he would let defendant have possession for three years.75 Exemplary damages need not be specially pleaded, and such pleading may be stricken out.76 Where there is relevant matter included within a portion of the pleading to which the motion to strike out is directed, the motion should be denied.77

§ 817. What pleadings may be stricken out.—New matter in a reply filed after rule time has expired and after the case is called for trial may be stricken out.78 Where an entire amended answer might have been stricken out because filed without permission of the court, it is not error to strike a portion of the answer.79 In an action on an open account evidenced by notes, a paragraph setting out the notes may be' stricken out.30 An amendment that strikes out certain matter from the prayer, .leaving the prayer for general relief, does not change the action or the rights of the parties, and cannot be stricken out on motion.31 An allegation in the reply which is at variance with the petition should be stricken out.32 Matters of inducement such as allegations of misrepresentations by which the

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defendants obtained rooms at a hotel should not be stricken from a complaint.33

§ 818. Election between counts.—The right to move to have different causes of action separately stated and numbered is waived by demurring to the whole or part of the petition.34 Where several causes of action are improperly mingled in one complaint, the defect may be reached by a motion to require separate statements.35 General negligence and specific acts of negligence need not be pleaded in separate counts, in the absence of a motion requiring it.36 A complaint which does not show affirmatively that it states more than one cause of action is not subject to a motion to separate.37 Where a complaint states more than one ground of recovery, the defendant may compel the plaintiff to elect as to which ground he shall stand upon,38 and likewise, where the defendant pleads inconsistent defenses, he may upon motion be compelled to elect upon which of his defenses he will rely.39 A landlord cannot be compelled to elect between a claim for rents specified in his lease and one for special damage for alleged injury to the property,90 nor can an election be required where all the counts in a complaint have reference to the same transaction and are for the recovery of the identical sum,91 or where the petition states facts which entitle plaintiff to

83 Hall v. Galloway, 76 Wash. 42, 135 Pac. 478.

M First National Bank v. Ingle, 37 Okl. 276, 132 Pac. 895.

85 Pinnacle etc. Co. v. People, 58 Colo. 86, 143 Pac. 837; Harding v. Ostrander Ry. etc. Co., 64 Wash. 224, 116 Pac. 635; Darknell v. Coenr d'Alene, 18 Idaho, 61, 108 Pac. 536; Kurtz v. Ogden Canyon etc. Co., 37 Utah, 313, 108 Pac. 14.

8« Colorado * S. Ry. Co. T. Jenkins, 25 Colo. App. 348, 138 Pac. 437.

8T Cohen v. Clark, 44 Mont. 151, 119 Pac. 775.

88 Whitten v. Griswold, 60 Or. 318, 118 Pac. 1018.

89 Hart-Parr Co. v. Keeth, 62 Wash. 464, Ann. Cas. 1912D, 243, 114 Pac. 169; Current v. Citizens' Bank, 16 N. M. 642, 120 Pac. 307.

»o Forrester v. Reliable Transfer Co., 65 Wash. 602, 118 Pac. 753.

8i Rand v. Columbian R. R. Co., 13 Cal. App. 444, 110 Pac. 322.

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