Carson City daily appeal. [volume] (Carson City, Nev.) 1907-1930, 1916-12-01

kdl, DIS al
ing section, the court may direct
the fact to be found according to
the evidence, or it may order an
immediate amendment, without
costs.S
In the case of Buckley vs.. Buck
ley, II New. 423, this court held in
substance thar when the facts alleg-
ed in a supplemental pleading occur
red after the original pleadings were
filed and were consistent with anu i'll
aid of the original %pleadings and did
not bring into the case any new
cause of action or any controversy
that was not in f act included IN the
issue originally made, supplemental
pleadings should be allowed if ask.
ed for SO as to protect the rights OF
the respective parties.
The basis of the controversy i'll
the matter at bar was the contract,
which was of a continuing nature.
The amount due on the contract at
the time of the filing of the COM
plant was, by reason of the very
nature OF the contract itself, less
than that which would have accum-
ulated by reason thereof at the time
Of the rendition of judgment. 1t was
not a new cause of action nor a
cause of action based upon a new
or distinct ground. 1t was the same
cause of action based upon the same
instrument. g..
In the case of Maionchi vs.. Mich
olini, 81 Pac. 1852, the Supreme
Court of California, under code pro-
vision quite similar to ourA held that
the court might direct a Tact to be
found according to the evidence and
may order an amendment to the orig
inal Aeading sufficient to cure an
immediate variance, and winch
would make the pleading conform to
the proof; further, that this might
be done without serving a copy
upon the adverse party or his attor-
ney; providing. .h0xexer. that the ad.
verse party was not actually mlsled
by such amendment to his prejudice:
This same principle was discussed
in the case of Ennis Brown Co. VS..
Hurst, in the same volume OF the
Pacific Reporter at page l059, where
in the court held$that it was proper
for the trial court to permit OF an
amendment to the complaint after
the evidence had been closed and the
cause had been submitted and taken
under Amusement and before decis-
ion; and to the same effect is the
case of Lee vs.. Murphy, 1lo Cal. 3o4.
In the case of Ramboz vs.. STAINS
bury, 40 Pac. 472,- it was held that
when in the trial of a cause evidence
was offered as to subject matter OF
an amendment subsequently made
to the complaint, the court did not
abuse its discretion in permitting
such amendment where such would
conform to the proof.
In the case of French VS.. McCar-
thy, SO Pac 154, the Supreme Court
of California, having under consid-
Grafton a matter of contract, held
| that where the defendant appears
| and answers in an action on a con
| tract, the terms of which are set
forth in the complaint, and there is
a want of conformity between the
prayer Of the complaint and the
| facts set forth, the court is authorlz-
| ed to permit an amendgaent at the
trial by inserting a larger sum i'll the
prayer.
The case of French vs.~McCarthy.
| supra, presented a problem affecting
an amendment to the prayer OF a
complaint in an action where a CON
tract continuing in its nature was
involved and where after the action
had been commenced additional pay,
ments were made on the contract sc
as to involve a sum in excess OF thai
due and owing on the contract al
the time of the commencement O
the action.
In the case of Finnegan VS.. Uhl
mer. 81 New. 523, this court, in quot
ing from it's former decision in thu
case of MsCausland vs.. Ralston, l.
New. 2O2 affirmed a rule which w
think applicable to the case at bar
wherein it said:
Courts in allowing. plead,ngs t.
be amended are necessarily clothe.
with discretionary powers whicl
cannot. owing to the varying cir
cumstances of each particular case
be governed by any general rule
The vital question is whether tn
court has grossly abused its discre
ton in this respect, or whether, b.
the allowance of the amendments
manifest injustice has been done t
t appellant
The amendment allowed by tn
{ court, and which was to the praye
of the complaint. introduced no ne'
J allegations, made no additional pal
ties, did not complicate the suit nc
increase the expense OF litigation
: nor did it make new issue of fact c
cucumber the record. Early author
ties on the subject OF pleading az
: dressed themselves to the subje'
thus: .=
n "If the bill be found defective
its prayer for relief. or in prope
e parties, or i'll the omission or mi
f take of some fact or circumstant
connected with the substance OF Il
case but not forming the substan'
e itself. the amendment is usual
granted. But the substance Of tt
bill must contain ground for relief
d Lyon VS.. Tallmadge. l Johns. Z
On. W 184.
e Does the evidence support Il
e judgment and decree OF the tri
court?
e 1t is the contention of appella