The Belmont chronicle, and farmers, mechanics and manufacturers advocate. [volume] (St. Clairsville, Ohio) 1848-1855, 1853-06-17
CHAPTER VII.
Mistales in pleading, and Amendments.


Sec i3l. No variance between the allegation in
pleading and the proof, is to be deemed material,
unless it have actually mised the adverse party TO
his prejudice, in maintaining his action or defence
upon the merits Whenever it is alleged, that
party has been so msled tha fact must be proved to
the satisfaction ol the court, and it must also be
shown in what respect he has been msled; and
thereupon the court may order the pleading to be
amended. upon such terms as may be Just
Sec. 1872. When the varianLe is not material, as
provided in the last secton the court may direct the
fact to be found according to the evidence and may
order an immediate amendment without costs.
Sec. 1873. When, however, the allegation OF the
claim or Defence to which the proof is directed, is
improved not in particular, or particulars only,
but in its general scope and meaning, 1t Is motto be
deemed case of variance within the last two Sec
| tions, but failure of proof.
Sec. 1884, The plaintiff may amend his petition
without eave at any time before the answer Is filed,
without prejudice to the proceeding; but nlice OF
such amendment shall be served upon the defendant,
or his attorney, and the defendant shall have the
same time 10 answer or demur thereto, us to the or
ginal petition.
Sec. l35 At any time within ten days after a
demurrer is filed, the adverse party may amend, OF
course, payment OF costs since filing the detective
pending Notice of filing an amended pleading
shall be forthwith served upon the other party, who
shall have the same time thereafter to answer, or
reply thereto, as to an original pleading. $500
Sec. 1856. Upon demurrer being overruled, the
party who demurred, may answer or reply, 1t the
court be satisfied that hel has merltorious claim,
or defence, and did not denur for delay.
Sec. 1871, The court may. before, or alter Judg-
mCnt, in iurherance OF Justice, and on such terms
as may be proper, amend any plea'tng, process or
proceeding, by adding or striking out the nam, OF
any party, or by correcting msta ke IN the name
OF party, or mistake in any other respect, or by
inserting other allegations material to the case or,
when the amendment does not change substantially
the claim or defence by conforming the pleading T
proceeding 10 the facts proved. And whenever any
proceeding taken by party fails to conform in any
respect the provisions of this code, the court may
permit the same TO be made coniornable thereto, by
amendment.
Sec. 1873, The court, in every stage OF an action,
must disregard any error or defect i'll the peadngs
proceedings which does hot affect the substantial
rights OF the adverse party; and no judgment shall
be reversed affected, by reason OF such error or
defect
| Sec. l39. If the demurrer be sustained the ad-
verse party may amend il the detect can be re-
medied, by way ot amendment with, or without
costs, the court in its discretion shall direct.
Sec l4O. When either party shall amend any
pleading, or proceeding, and the court shall be
satisfied by affidavit otherwise that the adverse
party could not be ready for trial in consequence
thereof, continuance may be granted TO some day
i'll term, or 10 another term OF the court.
| Sec l4l. When the plaintiff shall be ignorant OF
| the name of defendant, such defendant may be
designated in any pleading or proceeding by any
name and descriptionnnd when his true name Is dis
covered the pleading, or proceeding may be amend
/ ed accordingly The plaintiff in such case, must
state in the verihcaon ot his petition, that he could
not discover the true name, and the summons must
contain the words, 'rea name unknown" and n
copy thereof must be served personally upon the de-
! iendant.
| Sec. li2. Either party may be allowed on notice,
and on such terms TO COSTS as the court may pre-
scribe, to file n supplemental petition, answer, or
reply alleging facts material to the case, occurring
after the former petition, answer, or reply.
Sec. l43. Whenever Two or more actions are
pending in the same court, which might have been
joined, the defendant may, on motion and notice TO
the adverse party, require him to show cause why
the same shall not be consolidated, and if such
cause te shown, the said several actions shall be
consolidated.
Sec. lii The order for consolidation may be
made by the court, or by judge. thereof in vaca-
| ton.