Lord v. Hopkins

By the Court, Shafter, J.: The complaint was filed September 28th, 1864, and was demurred to on the 8th of October following. On the 13th of that month the case was called for trial. The plaintiff asked leave to file an amendment to his complaint, and for that purpose that he be granted ten days, reckoning from the day on which the demurrer was filed. The Court refused to grant any time therefor; whereupon, after argument, the demurrer was sustained and'judgment was duly entered for the defendant.

The ruling of the Court, denying the application to amend, [78]was erroneous, according to the decision in Gallagher v. Delaney, 10 Cal. 410, as limited and explained in Thornton v. Borland, 12 Cal. 438, and in Smith et als. v. Yreka Water Company, 14 Cal. 201. If tire plaintiff had foreborne to move for leave to amend until after the question upon the demurrer had been decided, and had then made his application, and it had been refused and judgment had been entered thereupon, the judgment would have been reversed. Here the plaintiff, by his own motion made in advance, virtually confessed that his complaint was defective and thereby obviated the necessity of judicial action on the question.

The objection that the complaint was so defective that it could not be made good by any amendment that could have been made, is not, in our opinion, well taken.

Judgment reversed and cause remanded.