Smith v. Yreka Water Co.

Baldwin, J. delivered the opinion of the Court—Cope, J. and Field, C. J. concurring.

The defendants demurred to the complaint, and the demurrer was sustained, and the plaintiff's bill dismissed. It is not seriously contended that the Court erred in sustaining the demurrer; but it is urged that the Court erred in giving final judgment against the plaintiff. No offer was made by the plaintiff [202]to amend after the sustaining of the demurrer. The ease of Gallaher v. Delaney, (10 Cal. 400,) is relied on by the Appellant. But that case depended on its own particular circumstances, which do not appear in the report, and the general language there used is to be taken in connection with the facts. This we had occasion to explain in the case of Thornton v. Borland, at the last January Term.

Amendments should be liberally allowed by the inferior Courts in advancement of justice and to secure a fair and speedy trial of suits upon their merits; and an arbitrary refusal to allow them under proper circumstances would be good ground for the interference of this Court. But the party desiring the amendment after demurrer sustained, must make his motion to the Court. He cannot object here that he was not permitted to amend when he made no offer.

Judgment affirmed.