Spooner v. Cady

SEARLS, C. This is an action in claim and delivery. Plaintiff had judgment, from which and from an order of the court made after final judgment, refusing a motion to set aside the default of defendant and the judgment rendered thereon, defendant appeals. The action was commenced October 3, 1892. On the thirteenth day of the same month defendant filed a demurrer to the complaint and answer. The demurrer was overruled, but at what date does not appear. On December 15,1892, defendant served and filed an amended answer, which was not verified, and was filed without any leave of court first had or obtained. Plaintiff moved to strike out the amended answer upon the grounds that it was filed [540]without permission of the court; without notice to plaintiff’s attorneys; that it was not verified, and that it did not state facts sufficient to constitute a cause of action. The motion was heard December 23, 1892. At the hearing, defendant asked leave to verify the amended answer, and in support thereof filed an affidavit showing, as cause for want of verification when filed, that defendant was absent from the county on official business, and his attorney was desirous of at once notifying plaintiff’s counsel of the contents of the proposed answer before preparations should be made for trial of the cause, etc. Defendant was sheriff of the county of Lassen, and, as one of the defenses of the original answer, an attempt was made, although a defective one, to justify the taking of the personal property in question by virtue of two certain writs of attachment. The attempt of the amended answer was to make a more full and specific defense than that contained in the original answer. The court below denied the application of defendant to verify the amended answer, struck the same out, and ordered judgment in favor of plaintiff, which was entered.

The court erred in its rulings. Under section 472 of the Code of Civil Procedure, ‘‘ any pleading may be amended once by the party, of course and without costs, at any time before answer or demurrer filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended, and serving a copy on the adverse party, who may have ten days -thereafter in which to answer or demur to the amended pleading.” Any pleading which may be amended, once of course and without costs, may be so amended without application to the court or permission therefrom. It is a right conferred upon parties equally with that of pleading originally; a right which the court cannot take from a party to an action. It must be exercised within the time and in the manner specified in the code, and is quite distinct from the numerous cases in which amendments to pleadings can only be made by leave of the court. The question whether an amendment to an answer as of course must be made within the ten days given to demur thereto, where no demurrer has in fact been interposed, or whether in such a case it may be made at any time before trial, is an important one, and, as its decision is not necessary to the disposition of the present