M. J. Ryan Co. v. Brown

MARKS, J. Appellant M. J. Ryan Company brought this action to recover $1300 principal, interest and attorneys’ fees on an executory contract of sale of a tractor signed by defendant M. D. O’Dell and respondent Jennie L. Brown. Defendant defaulted. Respondent filed an answer which attempted to set up the defense of fraud but lacked some essential averments. The case went to trial on these pleadings and the trial court permitted respondent to introduce evidence of fraud over the objection of appellant. At the close of the evidence respondent asked leave to file an amendment to her answer to conform to the proofs. There was no ruling on this request and the case was submitted. Later, and before judgment, respondent gave notice of a motion asking leave to file an amended answer to conform to the proofs. This was duly served, together with a copy of the amended answer. The motion was made and granted and the pleading filed. Appellant did not appear at the [178]time of the motion and made no request to have the ease reopened. The trial court’s findings upheld the defense of fraud and judgment was rendered for respondent.

Appellant urges that it was reversible error to permit the filing of an amended answer. This contention is disposed of in the case of Richards v. Tavares, 105 Cal. App. 261, at page 269 [287 Pac. 552], where it is said: “The allowance of amendments to conform to the proofs rests in the discretion of the trial court. (Hancock v. Board of Education, 140 Cal. 554 [74 Pac. 44].) Such amendments may be allowed after the submission of the cause (Lee v. Murphy, 119 Cal. 364 [51 Pac. 549, 955]; Hancock v. Board of Education, supra; Myers v. Holton, 9 Cal. App. 114 [98 Pac. 197]), and are deemed denied (Bank of Italy v. Johnson, 200 Cal. 1 [251 Pac. 784]). In the case at bar a copy of the amendment was served on the day the same was filed, and on February 9, 1928, the order for judgment was entered. The findings and judgment, however, were not filed until February 28, 1928. No request that the cause be reopened for the purpose of permitting the defendant to produce further evidence on the question presented by the amendment was made in the meantime, and it is not contended that all the facts relevant to the issue were not adduced at the trial. Before it can be held that the allowance of such an amendment was an abuse of discretion it must be shown that the adverse party has been prejudiced thereby (McClure v. Alberti, 190 Cal. 348 [212 Pac. 204]), and no reasonable ground for this conclusion appears in the present case. No judgment can be set aside for error in any matter of procedure unless after an examination of the entire record the court shall be of the opinion that the error complained of resulted in a miscarriage of justice. (Const., art. YI, see. 4%•)”