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in bar: Saylor v. Commonwealth Banking Co. 38 Or. 208, 62 Pac. 652, 13 Am. & Eng. Corp. Cas. (N. S.), 518.

It is within the power of the trial court to allow before trial an amended complaint to be filed containing a new cause of action or suit material to the subject-matter then before the court: Talbot v. Garretson, 31 Or. 265, 49 Pac. 978; Baldock v. Atwood, 21 Or. 73, 26 Pac. 1058; Lieuallen v. Mosgrove, 37 Or. 448, 61 Pac. 1022. So, after reversal and before retrial: Lieuallen v. Mosgrove, supra. But a new cause of action can not be inserted by way of amendment on the trial: Talbot v. Garretson, 31 Or. 265, 49 Pac. 978; Foste v. Standard Ins. Co. 26 Or. 449, 38 Pac. 617.

The test as to whether a change is an amendment or a substitution of a new cause is, whether or not the same evidence will support both the original and amended pleading; if it does, it is an amendment (Liggett v. Ladd, 23 Or. 38, 31 Pac. 81); if not, it is a substitution: Foste v. Standard Ins. Co. 26 Or. 452, 38 Pac. 617. See, however, Davis v. Hannon, 30 Or. 194, 46 Pac. 785.

Where a motion for leave to file an amended answer is called up the day before the time set for a second trial of the case, and the proposed amendment tenders a new issue, it is within the discretion of the court whether or not to allow the motion: Osmun v. Winters, 30 Or. 177, 46 Pac. 780.

In an action against an officer to recover damages for selling the property of plaintiff on an execution against another, where the answer merely denies plaintiff's ownership, an amendment to the answer may be made at the trial by adding on that the plaintiff fraudulently took and held the property in question. Though different evidence was required to sustain the allegations, the court held that the amendment did not work a substantial change in the defense: Davis v. Hannon, 30 Or. 194, 46 Pac. 785.

An amendment of a complaint by alleging an insurable interest in plaintiff's assignor at the time of a loss is permissible even after a motion for nonsuit: Koshland v. Fire Assoc. 31 Or. 363, 49 Pac. 865.

The court may at the trial allow an amendment to conform to the facts proved: Miller v. Lynch, 17 Or. 64, 19 Pac. 845.

In an action for money had and received, amending a complaint charging the receipt of money to be used in the purchase and sale of "grain, namely, wheat,' so as to read "grain or pork,' to conform to the facts proved on the trial, was not erroneous as introducing a new cause of action: Hammer v. Downing, 39 Or. 504, 64 Pac. 651. Where evidence is received without objection as to material matters not set out in the pleadings, a party should be allowed to amend his pleading to conform to the real issue tried: Cook v. Croisan, 25 Or. 475, 36 Pac. 532. Where, however, the evidence was objected to, such an amendment should not be allowed: Mendenhall v. Harrisburg Water Co. 27 Or. 42, 39 Pac. 399. In Bishop v. Baisley, 28 Or. 127, 41 Pac. 937, it is held not an abuse of discretion by the trial court to permit at the trial an amendment setting up new defenses based upon evidence that was objected to when offered, where the case is sent back to the referee to take such additional testimony as may be offered on the new issue.

An amendment at the trial of a complaint that will aid the pleader in stating more clearly the cause of action originally intended to be set forth should be allowed, if such intention is to be ascertained from the complaint: Foste v. Standard Ins. Co.

26 Or. 449, 38 Pac. 617; Bailey v. Wilson, 34 Or. 191, 55 Pac. 973.

Where it developed at the trial that a note sued upon was dated September 9, 1893, instead of September 9, 1892, as alleged, it is proper to permit an amendment when it appears that the other party was not misled: Farmers' Bank v. Saling, 33 Or. 405, 54 Pac. 190.

So, an allegation in an action for the death of a minor child, that the car was running at a dangerous rate of speed may be amended by adding at the trial that such a rate of speed was in excess of that allowed by city ordinance: Wade v. City Ry. Co. 36 Ör. 313, 59 Pac. 875.

An amendment adding an allegation of incorporation when such allegation is not of the gist of the action and was omitted by inadvertence, is proper even after plaintiff has submitted his evidence: Wild v. Oregon S. L. Ry. Co. 21 Or. 168, 27 Pac. 954. In an action by the assignee of a chattel mortgage to recover of the mortgagor the possession of the mortgaged, property where the defendant pleaded usury and payment to the original holder, the allowance of an amendment to defendant's answer at the trial that the usurious character of the instrument was well known to plaintiff, was not an abuse of discretion: Nunn v. Bird, 36 Or. 517, 59 Pac. 808. In an action of trover and conversion against several jointly, where the plaintiff fails at the trial to show participation by some of the defendants in the wrong charged, he may amend his complaint by omitting such parties: Cooper v. Blair, 14 Or. 263, 12 Pac. 370.

A party may be changed from defendant to plaintiff: Liggett v. Ladd, 23 Or. 38, 31 Pac. 81; or one not joined may be added: Hume v. Kelly, 28 Or. 406, 43 Pac. 380; or omitted: Tillamook Dairy Assoc. v. Schermerhorn, 31 Or. 309, 51 Pac. 438.

An amendment in a civil contempt proceeding begun by a private party was properly allowed so as to substitute the name of the state on the relation of the party interested, as required by § 667: State ex rel. v. Downing, 40 Or. 66 Pac. 918.

Permission to amend is properly denied where the amendment, if allowed, would leave the complaint subject to objections it was intended to obviate: Hume v. Kelly, 28 Or. 410, 43 Pac. 380.

The filing of an amended answer is a waiver by defendant of any objection to the ruling of the court sustaining a motion to strike out an original answer: Hexter v. Schneider, 14 Or. 186, 12 Pac. 668.

An amended pleading takes the place of the original, which ceases to be a part of the record: Wells v. Applegate, 12 Or. 208, 6 Pac. 770; Hume v. Woodruff, 26 Or. 373, 38 Pac. 191.

In case of delay in amending, the motion should be supported by affidavit showing some reasonable excuse for the delay or reason why the original pleading did not contain the proposed amendment: Garrison v. Goodale, 23 Or. 311, 31 Pac. 709.

Every matter which would have been admissible in evidence by way of amendment to the complaint will be deemed to have been added or its absence waived or cured after verdict: Davidson v. Oregon & Cal. R. Co. 11 Or. 139, 1 Pac. 705.

Where a complaint is so indefinite and uncertain that its real character as in tort or in contract can not be certainly determined but the facts are such that an action upon contract for the payment of money would lie, it can be amended SO as to uphold an attachment that has been already issued in the action: Suksdorff v. Bigham, 13 Or. 377, 12 Pac. 818.

$ 103. Enlarging Time to Plead, etc.— Vacating Judgments.

The court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done after the time limited by this code, or by an order enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. [L. 1862; D. Cd. § 100; H. C. § 102.]

VACATING JUDGMENTS.-Every court of record has an inherent right to correct, modify, or vacate its orders and judgments during the term at which they are entered, or while the proceedings remain under consideration and are not finally disposed of; but after the term has closed, unless the cause is continued by some appropriate proceeding, the orders and judgments can be vacated or modified only for some cause that was not apparent to the court at the time the orders were made, or for want of jurisdiction. Where a party elected to stand on a demurrer, intending to appeal, but the deputy sheriff failed to serve the notice of appeal in time, the court can not at a subsequent term set aside the judgment: Deering v. Quivey, 26 Or. 559, 38 Pac. 710. Nor can a judgment be vacated after the term at which it was rendered on the ground that the trial judge had died before settling and allowing a bill of exceptions, where such bill was filed with the judge, but a copy was not properly served on the opposing counsel, and no general order was made continuing all unfinished business: Alexander v. Ling, 31 Or. 222, 50 Pac. 915.

But where an appeal has been taken from a judgment and the trial judge dies before signing the bill of exceptions, which presents disputed issues of fact, and the judge who succeeds him in office refuses to sign the bill because of his ignorance of the facts, the judgment is properly vacated and a new trial ordered: Henrichsen v. Smith, 29 Or. 481, 44 Pac. 496.

A judgment or decree rendered without jurisdiction may be vacated at the term at which it was entered or at any subsequent term: Ladd v. Mason, 10 Or. 308.

The only way a consent decree can be attacked after the term at which it was entered is by original bill on the ground of fraud or mutual mistake: Stites v. McGee, 37 Or. 576. 577, 61 Pac. 1129.

MISTAKE, SURPRISE, ETC.-The proceeding here authorized is a direct proceeding to vacate a judgment or decree on the grounds specified: Crabill v. Crabill, 22 Or. 590, 30 Pac. 320.

Relief from judgments taken by inadvertence, mistake, or excusable neglect is discretionary with the court, and will not be reviewed except for abuse: White v. Northwest Stage Co. 5 Or. 103; Askren v. Squire, 29 Or. 230, 45 Pac. 779; Schneider v. Hutchinson, 35 Or. 254, 57 Pac. 324, 76 Am. St. Rep. 474, note; Lovejoy v. Willamette Locks Co. 24 Or. 569, 34 Pac. 660; Thompson v. Connell, 31 Or. 231, 48 Pac. 467, 65 Am. St. Rep. 818; Coos Bay Nav. Co. v. Endicott, 34 Or. 576, 57 Pac. 61. This discretion is not arbitrary, but a duty to decide in conformity with the spirit of the law, and in a manner to advance substantial justice: Thompson v. Connell, 31 Or. 235. 48 Pac. 467, 65 Am. St. Rep. 818; Hanthorn v. Oliver, 32 Or. 62. 51 Pac. 440, 67 Am. St. Rep. 518; Coos Bay Nav. Co. v. Endicott, 34 Or. 576, 57 Pac. 61.

A refusal to vacate is not such an abuse where the ground for vacating is mistake as to the locus in quo, when the trial judge is familiar with the ground and visited the place in order to qualify him to pass upon such application: Lovejoy v. Willamette Locks Co. 24 Or. 569, 34 Pac. 660.

A judgment on demurrer will not be vacated because the attorney for defendant failed to discover in time that the notice of appeal had not been served as he had directed: Deering v. Quivey, 26 Or. 558, 38 Pac. 710.

The failure on the part of an attorney to notice an exception in a deed because of the voluminous record in the case, and to request a ruling thereon, is not an excusable neglect: Hicklin v. McClear, 19 Or. 509, 24 Pac. 992.

The judgments in the following cases were relieved against on the ground of surprise and excusable neglect: Judgment for costs and disbursements through failure to file objections to the costs within the time prescribed by law, such failure being due to the illness of the party's counsel: Weiss v. Meyer, 24 Or. 109, 32 Pac. 1025; judgment entered in violation of an agreement extending the time to answer: Thompson v. Connell, 31 Or. 231, 48 Pac. 467, 65 Am. St. Rep. 818; a default judgment, when it was shown that defendant did not comprehend the English language perfectly; that he misunderstood a notification from his attorney as to the date of trial; that he was present in court on the date he understood the trial was to take place, etc.: Hanthorn v. Oliver, 32 Or. 60, 51 Pac. 440, 67 Am. St. Rep. 518.

In an action upon a joint obligation where one appeared and answered for all and subsequently some of them withdrew their appearance, a judgment entered against those withdrawing for want of an answer was erroneous and should have been vacated upon motion: Wilson v. Blakeslee, 16 Or. 44, 13 Pac. 665.

Where it appears that a party was not afforded an opportunity to present a defense, and that he had not been inexcusably negligent, the supreme court may relieve him from the consequences and remand for further proceedings instead of ordering a final decree: Smith v. Wilkins, 31 Or. 421, 51 Pac. 438.

An appeal from an order refusing to vacate will be dismissed where the only purpose of the application to vacate is to get a new judgment entered from which an appeal may be taken, the petitioners having allowed the time to expire within which they might have appealed from the judgment moved against: Tongue v. Brewster, 35 Or. 228, 58 Pac. 38.

Power to vacate a consent decree is not authorized by this section: Stites v. McGee, 37 Or. 574, 61 Pac. 1129.

Motions to vacate defaults are within the provisions of this section. Facts examined and held not sufficient to authorize vacating judgment: Bonnifield v. Thorp, 71 Fed.


Where a party makes a proper showing for setting aside a default judgment, the court has not the authority to require as a condition to vacating such judgment that the party should waive a good defense: Mitchell v. Campbell, 14 Or. 458, 13 Pac. 190. The time for filing abstract on appeal is governed by § 553, and an extension of time by the court is not authorized by this section: Kelley v. Pike, 17 Or. 330, 20 Pac. 645; Whalley v. Gould, 27 Or. 74, 40 Pac. 4; Shepperd v. Latourell, 27 Or. 137.

The court may extend the time for filing an amended verified statement of costs where the application to extend is made within the five days allowed to file the statement: Willis v. Lance, 28 Or. 382, 43 Pac. 384, 487.

§ 104.

It is not sufficient that the motion be made within a year after notice, but it must be heard and determined within that time: Nicklin v. Robertson, 28 Or. 278, 42 Pac. 993, 52 Am. St. Rep. 790, note.

The affidavit must show the existence of one of the grounds specified in the statute in order to authorize the court to vacate a judgment: Nicklin v. Robertson, 28 Or. 285, 42 Pac. 993, 52 Am. St. Rep. 790, note; Willis v. Lance, 28 Or. 382, 43 Pac. 384, 487. A denial of an application to vacate a judgment on the ground of inadvertence, surprise, or excusable neglect, is a bar to a suit in equity for the same relief on the same grounds: Thompson v. Connell, 31 Or. 236, 48 Pac. 467, 65 Am. St. Rep. 818.

Defendant Designated by Fictitious Name.

When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name shall be discovered, the pleading or proceeding may be amended accordingly. [L. 1862; D. Cd. § 101; H. C. § 103.]

$105. Amending Pleadings Before Trial.

When any pleading or proceeding is amended before trial, mere clerical errors excepted, it shall be done by filing a new pleading, to be called the amended complaint, or otherwise, as the case may be. Such amended pleading shall be complete in itself, without reference to the original or any preceding amended one. [L. 1862; D. Cd. § 102 ; H. C. § 104.]

See note to § 102, ante.

AMENDMENT.-When a new pleading is filed the former pleading is in effect withdrawn and ceases to be a part of the record, and all motions and demurrers re

lating thereto accompany it: Wells v. Applegate, 12 Or. 208, 6 Pac. 770; Hume v. Woodruff, 26 Or. 373, 38 Pac. 191; Hexter v. Schneider, 14 Or. 184, 12 Pac. 668.

§ 106. Striking out Pleadings, Grounds Therefor.

Any pleading not duly verified and subscribed may, on motion of the adverse party, be stricken out of the case. When any pleading contains more than one cause of action or defense, if the same be not pleaded separately, such pleading may, on motion of the adverse party, be stricken out of the case. When a motion to strike out is allowed, the court may, upon such terms as may be proper, allow the party to file an amended pleading, or, if the motion be disallowed, and it appear to have been made in good faith, the court may upon like terms allow the party to plead over. [L. 1862; D. Cd. § 103; H. C. § 105.]

STRIKING OUT PLEADINGS.-As to striking out for want of verification or subscription, see ante, §§ 81, 83; and as to striking out because different causes of action are not separately stated, see ante, 83 and 86.

If a complaint contains more than one cause of action, they must be separately stated, or the pleading will be liable to be stricken out for duplicity. An objection for

107. Immaterial Error Disregarded.

duplicity in pleading is to be made by a motion to strike out rather than by a special demurrer, as at common law: McKay v. Campbell, 1 Saw 374.

When a pleading is filed in good faith, the question whether it contains facts constituting a cause of action should be tried on demurrer, and not on motion to strike out: Cline v. Cline, 3 Or. 355.

The court shall, in every stage of an action, disregard any error or

defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party. [L. 1862; D. Cd. § 104; H. C. § 106.]

IMMATERIAL ERRORS DISREGARDED -This section authorizes the court to disregard immaterial variances so long as the opposing party has not been misled: Henderson v. Morris, 5 Or. 28.

Defects in a notice of appeal by reason of the loose manner in which it was drawn will be disregarded provided it has not misled the opposite party: Gregory v. North Pac. L. Co. 15 Or. 454, 17 Pac. 143.

When the facts alleged are a complete defense, but the conclusion of law drawn therefrom is misstated, the pleading will be upheld: Williams v. Culver, 30 Or. 381, 48 Pac. 365.

AIDER BY VERDICT.-After verdict a complaint will be held sufficient, if by fair and reasonable intendment it contains allegations under which all the absolutely necessary facts could have been introduced: Nicolai v. Krimbel, 29 Or. 76, 43 Pac. 865, and cases there collected: Foste v. Standard

§ 108. Supplemental Pleadings.

Ins. Co. 34 Or. 127, 54 Pac. 311; Savage v. Savage. 36 Or. 275, 59 Pac. 461; Chan Sing v. Portland, 37 Or. 71, 60 Pac. 718; Roseburg Ry. Co. v. Nosler, 37 Or. 303, 60 Pac. 904; Currey v. Butcher, 37 Or. 386, 61 Pac. 631; Sayre v. Mohney, 35 Or. 145, 56 Pac. 526.

A pleading which is defective by reason of the omission of some material allegation may be aided by the pleading of the adverse party. If the omitted allegation be supplied by the adverse pleading it is the same as if it were inserted in the party's own pleading: Ferrara v. Parke, 19 Or. 141, 23 Pac. 883; Turner v. Corbett, 9 Or. 79.

A general verdict, however, will not supply the omission of a material allegation: Booth v. Moody, 30 Or. 222, 46 Pac. 884, and cases there cited; Wyatt v. Wyatt, 31 Or. 537, 49 Pac. 855; Hannan v. Greenfield, 36 Or. 100, 58 Pac. 888.

The plaintiff and defendant respectively may be allowed on motion to make a supplemental complaint, answer, or reply, alleging facts material to the case, occurring after the former complaint, answer, or reply. [L. 1862; D. Cd. § 105 ; H. C. § 107.]

SUPPLEMENTAL PLEADINGS-Where, pending an appeal, the conditions and surroundings of one of the parties change so that a decree predicated on the facts existing at the time of the trial will be inequitable, the cause should be remanded to the end that supplemental pleadings_may be filed and justice administered: Royal v. Royal, 30 Or. 455, 47 Pac. 828.

A defense arising after the commencement of the action but before answer may properly be set forth in such answer. Thus, a payment and release after the commencement but before answer is a proper defense to be set up by the answer: O'Connor v. Van Hoy, 29 Or. 514, 45 Pac. 762, So, an accord and satisfaction after a judgment in a justice's court may be set up in a supplemental pleading in the circuit court on appeal: Robinson v. Carlon, 34 Or. 321, 55 Pac. 959.

Filing a supplemental pleading is a waiver only of former pleas inconsistent

with it: Hamlin v. Kinney, 2 Or. 92. A supplemental pleading is sufficient without setting out the original cause of action; the two are not designed to accomplish the same purpose: Robinson v. Carlon, 34 Or. 322, 55 Pac. 959.

There is a clear distinction between a supplemental answer which sets up facts transpiring subsequently to the former answer and an amendment which sets up a defense in existence at the filing of the former pleading. Facts of the former class are admissible from the bare circumstance of the facts having transpired since the party had an opportunity to plead; facts of the latter class the court has no right to admit unless the neglect or delay is shown to be excusable: Holladay v. Elliott, 3 Or. 347.

The same general rule governing supplemental complaints governs supplemental answers: White v. Allen, 3 Or. 103.



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§ 109. Issues Defined, Kinds Of.

Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds,

1. Of law; and,

2. Of fact. [L. 1862; D. Cd. § 171; H. C. § 173.]

§ 110. An Issue of Law Arises on Demurrer.

An issue of law arises upon a demurrer to the complaint, answer, or reply, or to some part thereof. [L. 1862; D. Cd. § 172; H. C. § 174.] § 111. Issues of Fact, How Raised.

An issue of fact arises,

VOL. I.-9.

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